Faculty of Law Research Report 2006 Contents
Message from the Associate Dean (Research) 1
Australian Research Council (ARC) Fellowships 2 ARC Federation Fellowship – Tim Lindsey 4 ARC Research Fellowship – Christine Parker 6 ARC Postdoctural Fellowship – Ann Genovese 8 Funded Research 10 Grants Commencing in 2006 11 Selected Grants in Progress 14 Centres and Institutes 27 Asian Pacific Centre for Military Law 28 Asian Law Centre 30 Centre for Employment and Labour Relations Law 33 Centre for Corporate Law and Securities Regulation 36 Centre for Media and Communications Law 38 Centre for Resources, Energy and Environmental Law 40 Centre for Comparative Constitutional Studies 42 Centre for the Study of Contemporary Islam 45 Intellectual Property Research Institute of Australia 48 Institute for International Law and Humanities 50 The Tax Group 53 Academic Research Profiles 55 Simon Evans 56 Belinda Fehlberg 58 Michelle Foster 60 Andrew Mitchell 62 Published Research 64
Journals And Newsletters 75
Journal Affiliations 79
Faculty Research Workshop Series 86
International Research Visitors Scheme 90
Student Published Research Prize 91
Academic Staff 92
Research Higher Degrees Completed in 2006 101
Research Degrees in Progress 103 message from the associate Dean (research) It is a great pleasure to present this report on the research activities in the Faculty of Law during 2006. The Faculty was delighted to have three Australian Research Council (ARC) Fellowships commence in 2006. Professor Tim Lindsey began his Federation Fellowship on Islam and Modernity: Syari’ah, Terrorism and Governance in South East Asia, Associate Professor Christine Parker began her ARC Research Fellowship on The Impact of ACCC Enforcement Action: Evaluating the explanatory and normative power of responsive regulation and responsive law and Dr Ann Genovese began her ARC Postdoctoral Fellowship on Has Feminism Failed the Family? A History of Equality, Law and Reform. In 2006 Faculty members also began work on two other ARC Discovery Projects and two ARC Linkage Projects. Details of those projects are provided in this report, along with an update on some of the funded projects in progress and the outcomes of projects completed in 2006. The University’s Melbourne Early Career Researcher Grant Scheme and the Faculty Small Grants Scheme provided valuable support for a number of smaller projects undertaken in the Faculty, which are also listed. Thanks are due once again to the Faculty’s grant mentors, Associate Professor Andrew Kenyon and Ms Helen Rhoades, for the outstanding guidance and assistance provided to grant applicants in 2006. The activities of the Faculty’s research centres and institutes are described in the second section of the report. The centres and institutes play a crucial role in supporting research activities within the Faculty as well as facilitating discussion and debate. The substantial contribution to the Faculty’s research effort made by centre and institute directors, administrators and members is gratefully acknowledged. This report provides profiles of four of the Faculty’s academic staff and their work: Dr Simon Evans, Professor Belinda Fehlberg, Dr Michelle Foster and Dr Andrew Mitchell. The report also sets out the papers presented and topics discussed at the Faculty Research Workshop convened by Ms Helen Rhoades during 2006. The Faculty’s Research Higher Degree (RHD) candidates had a successful year in 2006, with twelve successful completions. Both the candidates and their supervisors are to be congratulated on their success. Dr Carolyn Evans once again deserves particular thanks for the advice and guidance she provided to the Faculty’s RHD students through the Research Support Program. The Faculty of Law is very grateful to the Research Manager, Ms Margherita Matera, and the staff in the Office for Research, Ms Lucy O’Brien, Ms Angela Hendley-Boys, Ms Lupe Trigo-Rossier and Ms Suzie Trajcevska for the tremendous support they provided to the Faculty’s research activities during 2006.
Andrew Robertson Professor of Law Associate Dean (Research)
Message from the Associate Dean (Research) Faculty of Law Research Report 2006 Australian research council (ARC) fellowships
ARC Fellowships ARC fellowships ARC Federation Fellowship – Tim Lindsey
Islam and Modernity: Syari’ah, Terrorism and Governance in South-East Asia
The Australian Research Council’s (ARC) Federation Fellowships are innovative and highly prestigious awards designed to develop and retain Australian skills. Professor Tim Lindsey has been awarded an ARC Federation Fellowship to research Islam and Modernity: Syari’ah, Terrorism and Governance in South-East Asia. The Fellowship runs for a period of five years (from 1 August 2006 to 1 August 2011).
Objectives The Fellowship aims to achieve a better understanding of Islam and terrorism in Southeast Asia and to strengthen Australian capacity to navigate our regional relationships by (i) supporting themed research and community engagement programs; (ii) building the capacity of the Centre for the Study of Contemporary Islam; and (iii) mentoring young scholars in the field of Islam in Indonesia. The project addresses an area of critical national significance at a time when Islam in our region is of immediate strategic importance. The main themes to be researched under the Fellowship include: • Islam and the Challenge of Modernity in Southeast Asia • Mapping New Approaches to ‘Islamic’ Governance in Southeast Asia • Militancy and Syari’ah in Southeast Asia During the life of the Fellowship, three Doctoral Scholarships will be awarded and at least three Research Fellows appointed, in addition to a part-time Research Assistant and around 10 casual Research Assistants.
Progress to Date Doctoral Scholarships Following a national application process, the first doctoral scholarship was awarded to Mr Jeremy Kingsley, for a period of three years (2007–2009). Mr Kingsley is currently conducting fieldwork in Lombok on his thesis topic, ‘Religious Law and Violent Conflict in Lombok’
Employment A number of people have been employed to work on the ARC Federation Fellowship, including: • Ms Kathryn Taylor (Project Manager) • Ms Kelly McDermott (Administrative Assistant) • Ms Helen Pausacker (Research Assistant, 2.5 days per week)
Faculty of Law Research Report 2006 ARC fellowships ARC Federation Fellowship – Tim Lindsey
• Ms Jemma Parsons (casual) Congress on ‘Law, Power and Culture: Transnational, • Ms Melissa Crouch (casual) National and Local Processes in the Context of Legal • Ms Faye Chan (casual – translation) Pluralism’ and the VIIth International Course on Legal • Ms Jessica Rae (casual) Pluralism, Jakarta, 29 June–2 July, 2006. • Ms Vannessa Hearman (casual – translation) • Alfitri – to present ‘Religious Liberty in Indonesia: • Ms Amber Earles (casual – translation) Guarantees from the Constitution and the Rights of • Ms Marcia Wibisono (casual translation) Deviating Sects in Indonesia’ at Harvard Project for Asian and International Relations (HPAIR) Conference, Work in Progress Singapore, 18–21 August, 2006. Tim Lindsey • Mr Andrew White – to present at the Harvard Project for Current Research Future Research Asian and International Relations (HPAIR) Conference, • Islam in Indonesia • History of Darul Islam Singapore, 18–21 August, 2006. • Islam in Brunei, Malaysia and Jemaah Islamiah and Singapore • Islam in Thailand and Visitors Philippines Mr Noor Huda Ismail visited Melbourne as part of the Melissa Crouch ARC Federation Fellowship from 6–15 November and 20–23 November, 2006. During his stay, he presented Current Research Future Research a seminar on ‘Jemaah Islamiyah, Al Qaeda and Regional • Places of worship • Religious courts Terrorism: Kinship and Family Links’. legislation • Regional Islamic Publications legislation Books Jeremy Kingsley • Lindsey, T, (editor and contributor) Indonesia: Law Current Research Future Research & Society, 2nd edition (revised and expanded), • Inter-religious communal • Caliphate in Southeast forthcoming (2007) violence in Lombok Asia • Lindsey, T, Islamic Laws in Indonesia, forthcoming (2007) Jemma Parson Book Chapters Current Research Future Research • Lindsey, T, Hooker, M B, Clarke, R and Kingsley, J, • Indonesia Ulama Council • Religious Education in ‘Syari’ah Reform in Aceh: New Born or Still Born?’ (MUI) Southeast Asia in M Feener and M Cammack (eds), Law Reform in Helen Pausacker Indonesia, University of Washington Press (in press, Current Research Future Research 2007) • Pornography cases • Anti-Pornography and Conference Presentations being pursued under Pornographic Actions Bill criminal code by Islamic • Alfitri, ‘Religious Liberty in Indonesia: Guarantees from Defenders’ Front the Constitution and the Rights of Deviating Sects in • Polygamy Indonesia’, Harvard Project for Asian and International Relations (HPAIR) Conference, Singapore, 2006 Kathryn Taylor • Gillespie, P, ‘XX’, XVth International Congress on Law, Current Research Future Research Power and Culture: Transnational, National and Local • Comparison of role of • Chinese conversion to Processes in the Context of Legal Pluralism, XX, 2006. women as preachers Islam in Indonesia and in Islam in China and Malaysia • Lindsey, T, ‘Egypt, Indonesia and Terrorism’, Jakarta Post Southeast Asia Seminar, Jakarta, 2006 • Lindsey, T, ‘Death and Drugs, Bali and Bombs: Funding Granted Indonesia’s Death Penalty, Judicial Reform and Funding was granted in 2006 to the following people: Bilateral Relations with Australia’, Australian Institute of • Mr Piers Gillespie – to attend XVth International International Affairs, Melbourne, 2006
ARC Fellowships ARC fellowships ARC Research Fellowship – Christine Parker
The Impact of ACCC Enforcement Action: Evaluating the Explanatory and Normative Power of Responsive Regulation and Responsive Law
Under its first Chair (1991–2003), Professor Allan Fels, the Australian Competition and Consumer Commission (ACCC) garnered a reputation as an unusually tough and effective regulatory enforcement agency. ACCC enforcement transformed business attitudes towards competition law, including prohibitions on bid-rigging and price-fixing, and consumer protection law. Yet at the same time the Chief Executive Officers of a number of Australia’s biggest companies regularly and publicly criticised the ACCC and its former Chairman, Fels for using its position of strength to bully business into complying with its directives. Business sometimes even settled matters and then denied their legal liability and moral responsibility for the conduct they had previously admitted to, as well as criticising the ACCC for taking enforcement action in the first place. This project builds on and extends Christine Parker’s previous study that used exploratory qualitative interviews with 60 ACCC enforcement staff and trade practices lawyers and consultants. (This earlier research was funded by the Regulatory Institutions Network at the Australian National University under a partnership arrangement with the Australian Competition and Consumer Commission.) Dr Parker’s ARC funded project will now allow her to analyse the results of a survey of 999 of Australia’s largest businesses about their perceptions and experiences of ACCC enforcement and their compliance with the Trade Practices Act together with collaborator, Dr Vibeke Nielsen, Associate Professor of Political Science at the University of Aarhus in Denmark. In the first part of the project Parker and Nielsen are using their survey and qualitative interview data about the ACCC’s enforcement interactions with business and business compliance with the Trade Practices Act to evaluate and test the most influential theories about why businesses comply, or do not comply with the law, and what impact regulatory enforcement action has on their compliance. These include deterrence, procedural justice, legitimacy, defiance, motivational postures and reintegrative shaming theories. Different theories are likely to explain compliance of different firms and individuals in different circumstances. Ayres and Braithwaite’s responsive regulation theory is the leading attempt to explain and prescribe the way in which regulators should flexibly utilise a range of enforcement strategies to build compliance and respond to non-compliance. It states that compliance Faculty of Law Research Report 2006 ARC fellowships ARC Research Fellowship – Christine Parker
and enforcement strategies tend to be, and should be, book on explaining compliance. Publications from this arranged in a regulatory pyramid with more cooperative project to date include: strategies deployed at the base of the pyramid and • Parker, C and Stepanenko, N, Compliance and progressively more punitive approaches utilised if and Enforcement Project: Preliminary Research Report, when more cooperative strategies fail. Responsive Centre for Competition and Consumer Policy, Australian regulation proposes that enforcement action is most National University, Canberra (2003) successful at achieving compliance when regulators act on the basis of a presumption in favour of starting at the • Parker, C, Ainsworth, P and Stepanenko, N, ACCC base of the pyramid, only escalating up the pyramid if the Enforcement and Compliance Project: The Impact of regulated firm refuses to respond in a spirit of cooperative ACCC Enforcement Activity in Cartel Cases, Centre for compliance, and reverting to cooperative strategies when Competition and Consumer Policy, Australian National compliance is achieved. But many other researchers of University, Canberra (2004) enforcement and compliance have doubted whether such • Parker, C, Braithwaite, J and Stepanenko, N, ACCC a presumption is always, or indeed ever, likely to result Enforcement and Compliance Project: Report on ACCC in compliance success, or whether it is even possible for Compliance Education and Liaison Strategies, Centre for regulators to promote truly ‘cooperative’ compliance at the Competition and Consumer Policy, Australian National base of the pyramid when both regulator and regulatee University, Canberra (2004) know that they can always escalate to punitive sanctions • Parker, C, ‘Restorative Justice in Business Regulation? at the tip of the pyramid. Parker and Nielsen’s work will The Australian Competition and Consumer test responsive regulation to develop a plural explanatory Commission’s Use of Enforceable Undertakings’ (2004) theory for compliance. 67 Modern Law Review 209–246 In the second part of the project Parker hypothesises • Nielsen, V and Parker, C, The ACCC Enforcement and that as a normative policy idea, responsive regulation Compliance Survey: Report of Preliminary Findings, is an example of the impulse towards developing more Centre for Competition and Consumer Policy, Australian democratically ‘responsive law’ – an attempt by law to National University, Canberra (2004) connect with people’s values, meanings, consciences and moralities by turning itself ‘inside out’. Rather • Parker, C, ‘The ‘Compliance’ Trap: The Moral Message in than imposing rules and judgments on people through Responsive Regulatory Enforcement’ (2006) 40 Law & hierarchical law-making and an adversarial court system, Society Review 591–622 responsive law seeks to work proactively into a world • Parker, C and Nielsen, V, ‘Do Businesses Take which is rich with indigenous regulatory possibilities even Compliance Systems Seriously? An Empirical Study of without law (including people’s morality or conscience, Implementation of Trade Practices Compliance Systems institutions of ‘civil society’ such as community in Australia’ (2006) 30 Melbourne University Law organisations and NGOs, and business and professional Review 441–494 self-regulation) and tries to instigate/catalyse deliberative • Parker, C and Nielsen, V, Do Compliance Programmes processes to solve problems rather than simply imposing Influence Compliance?, University of Melbourne Legal a solution. In doing so responsive regulation will have Studies Research Paper No. 189, Melbourne (2006) to resolve fundamental dilemmas about the relationship Also available at SSRN: http://ssrn.com/abstract=930238 between coercion and persuasion, law and democracy. How much discretionary power should regulators have to • Sharpe, M and Parker, C, ‘A Bang or a Whimper?: The punish or persuade? How and to whom can they be held Impact of ACCC Unconscionable Conduct Enforcement’ accountable? Is there any way in which law can promote Trade Practices Law Journal, (forthcoming, September, ethics and democratic accountability in business? 2007) Although ARC funding for this project only began in 2006, • Parker, C and Nielsen, V, ‘What do Australian Businesses there have already been a number of publications from Think of the ACCC and does it Matter?’ 2007, Draft Parker’s earlier qualitative study of the ACCC and Parker paper available from the authors. and Nielsens’ analysis of their survey data. Parker has • Nielsen, V and Parker, C, ‘To What Extent Do Third presented her work at the annual US Law and Society Parties Influence Business Compliance?’ 2007, Draft Association meetings and at a number of seminars and paper available from the authors. conferences for both academics and regulators in the UK and Australia. Parker and Nielsen are now working on a ARC Fellowships ARC fellowships ARC Postdoctural Fellowship – Ann Genovese
Has Feminism Failed the Family? A History of Equality, Law and Reform
The Australian idea, and ideal, of public law reform based on social equality appears to be a remnant of the past. The public profile of Australian feminism as a philosophy and movement based on an idea of sexual equality appears also to have lost gravitas and collective support. My ARC post-doctoral research seeks to ask why these ideas no longer have currency, and how they are connected. Since the 1970s, there has been an identifiable movement from social liberalism’s focus on equality to neo-liberalism’s focus on the individual. This has irrevocably changed how the law and the state approach reform, and how they accommodate the arguments for reform based on specific grounds, such as feminism’s claims for sexual equality. Our political, legal and social present is shaped by this shift, but has not yet been thought about in terms of its historical dimensions, as histories which examine the 1970s and 1980s are underrepresented in Australian scholarship. My project argues that this key shift demands scholarly attention, and will use the Commonwealth Family Law Act (1975) and its thirty year history of reform as a framing case study. By investigating the project of equality based law reform and the central problem that reform ideas which worked in the past are based on an outmoded notion of the liberal state, the research specifically aims to give historical reference to the current public perception that 1970s feminism somehow failed, especially as regards the family, by promoting ideas of liberal equality that it could not deliver. This is exacerbated by a dominant discourse in family law today, that despite the fact the Family Law Act sought to legislate an equal playing field on the breakdown of marriage, the law in its operation is gender biased against men. My research examines how both of these ideas have developed and gained social traction, in other words, will investigate their genealogy. This does not mean that the project eschews traditional historical sources, in fact, the nine months of research to date has been focussed on intensive archival examination of literature, commentary, case law and cabinet documents relating to the Family Law Act’s legislative precursor, the 1959 Matrimonial Causes Act, and how it encapsulated not only a desire for uniform divorce law, but the slow movement toward procedural fairness and maturity that the Family Law Act sought to entrench.
Faculty of Law Research Report 2006 ARC fellowships ARC Postdoctural Fellowship – Ann Genovese
Rather, my approach to understanding the questions posed is interdisciplinary, and sits squarely outside of the traditional common law approach to legal history writing, which is intent on deriving the core meaning of rules from a large range of cases, or judicial biographical material. This kind of legal history perceives the development of law over time as an autonomous branch of historical analysis and reads legal texts as statements of law, with an assumption that progressivism in both social and jurisprudential terms occurs in tandem with legislative and curial developments This is a form of history writing that positions itself within a traditional legal paradigm, as opposed to an historiographical one. Legal histories which discuss family law predominantly follow this approach. My approach of both reading historical texts and sources for their legal meaning, (and traditional legal material as a cultural text) also sits this project outside of most traditional history writing, which is not directly invested in, or is wary of, the implications of law’s rules and practices. The proposed conceptual and methodological approach for this project therefore reflects upon and contributes to innovations in legal history writing as informed by feminism but also by critical race and post-colonial theories that understand that challenges to law’s meaning emerge from both inside and outside of a tight cultural world inhabited only by practitioners and interpreters of law. The research is directed to publication in book form, and will hopefully be of significance to policy makers, as well as to the divergent groups which currently research legal and government regulation of families and family breakdown. Further, the project will contribute to the understanding of Australia’s immediate, and often historically neglected, past.
ARC Fellowships funded research
10 Faculty of Law Research Report 2006 funded research Grants Commencing in 2006
Australian Research Council (ARC) Andrew Kenyon, Tim Lindsey, Discovery Project Grants Tim Marjoribanks and Amanda Whiting (2006–2008) Andrew Christie and Kimberlee Weatherall ‘The Media and ASEAN Transitions: Defamation Law, (2006–2008) Journalism and Public Debate in Indonesia, Malaysia ‘... and by opposing, end them: A Comparative and Singapore’ Examination of Opposition Processes in Patent Law’ Funding $335,000 Funding $289,967 This project will examine defamation law, journalism and Patent law is central to the key Australian economic public debate in three core members of the Association aim of encouraging an innovative culture. One aspect of of Southeast Asian nations: Indonesia, Malaysia and patent law, the opposition process, is directly linked to Singapore. It will focus on a legal issue, defamation, which two important issues currently facing our patent system: is central to the Australian and regional media’s potential improving patent quality, and minimising predatory for improving public and private sector governance, and behaviour by powerful firms. This project will assess promoting domestic and regional understanding, at a the operation of the opposition process here, and the time when independent media speech has great value in practice of equivalent international procedures for other relation to trade, security and development. When risks jurisdictions, in order to inform Australian policy in current of transnational defamation liability are increasing, it will and ongoing negotiations towards a global harmonisation. assist the Australian media’s coverage of three pivotal Material from this project will lead directly to proposals for countries in the region and substantially develop the improving the Australian patent system, and ensuring that academic understanding of defamation law’s effects on it promotes and does not retard innovation. media content.
Ann Genovese (2006–2008) Christine Parker and Vibeke Nielsen ‘Has Feminism Failed the Family? A History of (2006–2010) Equality, Law and Reform’ ‘The Impact of ACCC Enforcement Action: Evaluating Funding $238,680 the explanatory and normative power of responsive regulation and responsive law’ The research will examine the history of legal reform since the introduction of the Family Law Act. It will provide a Funding $350,000 broader perspective to feminist and conservative criticisms The project will enhance the capacity of the ACCC and of gender bias and legal unfairness in the operation of a other business regulators to ethically and effectively family law system understood to be based on equality regulate to achieve the goals of regulatory policy such principles. The project’s outcomes will be of immediate as a fair, competitive economy, occupational health and significance to policy makers, as well as the divergent safety, and environmental integrity. Australia is already well groups which currently research legal and government recognised as a leader in ambitious empirical and policy regulation of families and family breakdown. Further, the oriented social science research on regulatory compliance project will enhance national knowledge by contributing to (through the ARC funded Governance Network including the historical understanding of Australia’s immediate past. RegNet at ANU). This project will enhance that reputation with the most comprehensive data set on the corporate compliance impact of enforcement action and fundamental re-thinking of foundational theoretical questions about the nature and capacities of regulation.
Funded Research 11 funded research Grants Commencing in 2006
Ian Ramsay, Cameron Rider, Ann O’Connell Australian Research Council (ARC) and Richard Mitchell Linkage Project Grants (2006–2008) ‘Employee Share Ownership Plans: Current Practice Camille Cameron and Jonathan Liberman and Regulatory Reform’ (2006–2008) Funding $323,000 ‘Litigation and Liability as Regulation to Reduce Tobacco Related Harm’ National Priority Research Goals: Fostering and Innovative Culture and Economy. Employee Share Ownership Funding $73,950 Plans (ESOPs) are important to the development of an Partner Organisation: The Cancer Council of Victoria economic culture of enterprise and innovation and the The new National Tobacco Strategy (NTS), signed in building of national wealth and savings in response to November 2004 by all Australian Governments, explains long term demands of intergenerational equity. ESOPs that successful tobacco control interventions bring require development through appropriate regulatory major social and economic returns, including healthy and frameworks. This project will subject the existing regime independent ageing, sustainable health care systems, of tax, corporate and labour law to technical and empirical a stronger economy, stronger communities, stronger scrutiny. This will enhance the capacity of policy makers to families, improved indigenous health, and less harm from evaluate and identify appropriate regulatory techniques to illicit drugs. The NTS acknowledges that regulation is a key ensure the growth of efficiency of ESOPs at the national tobacco control intervention. The research will explore and and enterprise level. make recommendations about new regulatory approaches that have the capacity to substantially reduce the harm caused by tobacco, and to maximise the social and economic returns of tobacco control to the community.
Andrew Kenyon and Andrew Christie (2006–2008) ‘Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia’s Digital Heritage’ Funding $290,000 plus an additional $126,000 will be contributed by the ten partner organisations. Partner Organisations: Arts Law Centre of Australia, Australian Centre for the Moving Image, Australian Film Commission, Museum Victoria, Museums Australia, National Gallery of Victoria, National Gallery of Australia, National Museum of Australia, Powerhouse Museum and State Library of Victoria This project investigates current and emerging ways of using digital collections in museums, galleries, libraries and archives, in light of copyright law and the interest of creators. It serves the strong public interest in facilitating digital access to collections while efficiently managing copyright. Exploiting the potential of digital media and maximising Australia’s creative capability both depend on providing adequate incentives for content production. The project will assist Australia better manage its digital cultural collections and balance the interest of creators, institutions and public accessibility.
12 Faculty of Law Research Report 2006 funded research Grants Commencing in 2006
Faculty Small Grants Scheme Melbourne Early Career Researcher Grant Scheme Jennifer Beard ‘Should the Cab Rank Rule Benefit All Parties to Litigation or John Howe only the Vulnerable?’ ‘Labour Law in an Era of ‘Self Regulation”
Colin Fenwick Sunita Jogarajan ‘Law and Labour Market Regulation in Southern Africa’ ‘International Organisations and Tax Reform in Developed Countries’ Linda Haller ‘Lawyer Discipline in Victoria: A Statistical Analysis’
Tim Lindsey ‘Government of the Shadows: Law, Global Governance, Para-Politics and Organised Crime’
Andrew Mitchell ‘Legal Principles in WTO Dispute Settlement’
Jacqueline Peel and Lee Godden ‘Re-conceiving Australian Environmental Law: A Framework for Interdisciplinary Integration and Regulatory Evolution’
Helen Rhoades ‘The ‘Helping Court’: An Examination of the Early Years of the Faculty Court of Australia’
Funded Research 13 funded research Selected Grants in Progress
Chief Investigators: Paul Ali and Geof Stapledon Corporate Governance and Institutional Investment in the Australian Financial Markets ARC Discovery Project (2005–2007)
Project Description and Objectives Project Outcomes The financial markets play a vital role in Australian Publications economic life. The majority of the assets of Australian • Ali, P, ‘The ‘Best of Both Worlds’ Fund: Exchange Traded superannuation funds and managed investment Funds in Australia’ in G Gregoriou (ed), Diversification funds are financial products. This project will provide and Portfolio Management of Mutual Funds, Palgrave a comprehensive account of the different types of Macmillan, Hampshire (2007) complex financial products available in Australia and an assessment of the corporate governance practices at • Ali, P, ‘Investing in the Environment: Some Thoughts Australian companies and Australian institutional investors on the New Breed of Green Hedge Funds’ (2007) 12 in relation to their use of complex financial products. Derivatives Use, Trading and Regulation 351–358 Through these outcomes, the project will contribute to a • Ali, P, ‘CDO Issuers and Corporate Governance.’ broader understanding of Australian financial markets and CDO 2006: Gearing into Market Intelligence through the enhancement of corporate governance practices in Collateralized Debt Obligations, Kuala Lumpur, 2006 Australia. • Ali, P, ‘Corporate Governance and Corporate End-Users’ The project will examine in detail, the corporate in J Denton (ed), Practical Derivatives: A Transactional governance aspects of complex transactions in Approach, Globe Business Publishing, London (2006) Australian financial markets, including the legal design • Ali, P, ‘Corporate Social Responsibility and Fiduciary of complex financial products, the duties of directors of Investment in Australia’ in P Ali and G Gregoriou (eds), Australian companies that use such products, the duties International Corporate Governance after Sarbanes- of institutional investors that have invested in those Oxley, John Wiley & Sons, Hoboken, (2006) companies, and the efficacy of the regulation of complex financial products in Australia. • Ali, P, ‘Cyberderivatives: The Regulation of Online Trading in Equity Bets’ (2006) 37University of Toledo Progress and Future Work Law Review 439–460 In accordance with the stated objectives of the project, • Ali, P, ‘Hedge Funds, Corporate Governance and the Paul Ali and Geof Stapledon have undertaken a substantial Separation of Ownership and Control’ in G Gregoriou review and analysis of complex financial products and and D Kaiser (eds), Hedge Funds and Managed Futures: financial dealings in the Australian financial markets, A Handbook for Institutional Investors, Risk Books, together with the related corporate governance practices London (2006) of Australian institutional investors. Empirical work on • Ali, P, ‘Investing in Death/Speculating on Mortality: certain products (including hedge funds) and dealings Some Thoughts on Life Insurance Securitization’ in (including private placements) is ongoing and is scheduled P Ali and G Gregoriou (eds), International Corporate to be concluded during 2007. Substantial progress has Governance after Sarbanes-Oxley, John Wiley & Sons, been made in relation to both the research and the Hoboken (2006) publication of research outcomes concerning the first two years of the project. • Ali, P, ‘Portable Alpha and Hedge Funds: Legal Issues.’ (2006) 11 Derivatives Use, Trading and Regulation 366–374
14 Faculty of Law Research Report 2006 funded research Selected Grants in Progress
• Ali, P, ‘Recent Developments in Securitisation: The • Ali, P, ‘Securitisation of Non-Performing Loans’ (2005) 23 Australian Perspective.’ Singapore Academy of Law, Company and Securities Law Journal 531–537 Singapore, 2006 • Stapledon, G, ‘Australian Developments.' Round Table on • Ali, P, ‘Siamese Twins and Virtual Mergers: Dual-Listed Corporate Governance, United Nations, Geneva, 2005 Companies in Australia’ in G Gregoriou (ed.), Initial Public Offerings: An International Perspective, Elsevier Finance, Massachusetts (2006) • Ali, P, ‘Synthetic CDO Squares and the Continuing Evolution of Funds of Funds’ in G Gregoriou (ed.), Funds of Hedge Funds: Performance, Assessment, Diversification, and Statistical Properties, Elsevier Finance, Massachusetts (2006) • Ali, P and Gregoriou, G (eds), International Corporate Governance after Sarbanes-Oxley, John Wiley & Sons, Hoboken (2006) • Stapledon, G, ‘CEO Compensation in Australia’s Largest Companies’ in P Ali and G Gregoriou (eds), International Corporate Governance after Sarbanes-Oxley, John Wiley & Sons, Hoboken (2006) • Stapledon, G, ‘The Development of Corporate Governance in Australia’ in C Mallin (ed), Handbook on International Corporate Governance, Edward Elgar Publishing, London (2006) • Ali, P, ‘Applying Securitization Technology to Hedge Funds’ in G Gregoriou, G Hubner, N Papageorgiou and F Rouah (eds), Hedge Funds: Insights in Performance Measurement, Risk Analysis and Portfolio Allocation, John Wiley & Sons, New Jersey (2005) • Ali, P, ‘Corporate Governance Aspects of Special Purpose Vehicles’, Beijing International Conference on Applied Business Research, University of International Business and Economics, Beijing, 2005 • Ali, P, ‘Cyberderivatives: Online Markets in Equity Betting’, The Tenth Anniversary of Cybersecurities Law, University of Toledo College of Law, Ohio, 2005 • Ali, P, ‘Legal and Regulatory Issues for Investors’, CDO World Australia, Sydney, 2005 • Ali, P, ‘Non-Performing Loans and Securitisation’, Transition, Growth and Globalisation, University of Western Australia Business School, Perth, 2005
Funded Research 15 funded research Selected Grants in Progress
Chief Investigator: Andrew Kenyon Research Fellows: Robin Wright and Jason Bosland The Future of Television: Australian Legal Protection of Digital Broadcast Content ARC Discovery Project (2005–2007)
Project Description and Objectives Progress The television broadcasting industry is undergoing During 2006 the research team conducted interviews fundamental changes associated with the transition with key industry informants, conducted and organised from analogue to digital transmission. This has serious events and completed and prepared articles and book implications for the Australian public interest in a diverse chapters for publication. broadcast environment that is accessible to all citizens, Thirty-five one hour interviews were conducted with and one which supports viable creative industries. Free- members of the broadcasting industry between March to-air broadcasting is Australia’s most widely used mass and September 2006 in Sydney, Melbourne and Canberra media form and performs central economic, democratic by Robin Wright and Andrew Kenyon. Interviewees and cultural functions. However technological changes sought the personal views and experiences of the industry pose unprecedented challenges to broadcasters. experts. Interview transcripts were analysed and coded Unlike analogue material, digital material can be copied across four key areas: and re-transmitted with no noticeable degradation in • content protection for digital television broadcasts in quality. The emergence of broadband internet and Australia; associated customer equipment, including digital video recorders, creates the possibility of material broadcast • consumer re-use of broadcast content; ‘in the clear’ (without any form of technological protection) • the interaction of technical and regulatory controls; and being copied and freely distributed. If digital broadcast • the future of television broadcasting in Australia. content is not protected, high value content may no longer be available to free-to-air broadcasters. The changes to Project Outcomes broadcasters’ businesses may also threaten local content production. However protection of broadcast content Publications and Conference Papers must take in to account the interests of content producers • Bosland, J, Kenyon, A and Wright, R, ‘Proposal to Relax and broadcasters in preventing unrestricted copying and Restrictions gives New Channels a Sporting Chance’ redistribution as well as the interests of users in (2006) The Australian, p 19, 16 March exercising freedom to copy and communicate digital • Bosland, J, ‘Beyond Broadcasting: Facing the Future content in innovative ways. of Australian Content in the Digital Audiovisual This project aims to provide in-depth, independent analysis Environment’, Australian and New Zealand of Australian regulatory options for protecting digital Communications Association Annual Conference, broadcast content, including technological and legal forms Adelaide, 2006 of protection, in a rapidly changing communications and policy environment. It encompasses research in copyright law, media regulation and media studies.
16 Faculty of Law Research Report 2006 funded research Selected Grants in Progress
• Wright, R and Kenyon, A, ‘Digital Free-to-Air Broadcasts: How is Content Protection an Issue?’, Communications Policy and Research Forum, University of Technology Sydney, Sydney, 2006 • Kenyon, A and Wright, R, 'Television as Something Special? Content Control Technologies and Free-To-Air TV' (2006) 30 Melbourne University Law Review 338–369 • Bosland, J, ‘Digital Television and Multichannelling: Changes Under the Broadcasting Legislation Amendment (Digital Television) Act 2006’ (2006) 11 Media & Arts Law Review 440–446 • Bosland, J, ‘Regulating for Local Content in the Digital Audiovisual Environment: A View from Australia’ (2007) 18 Entertainment Law Review 103–113 • Wright, R, Kenyon, A and Bosland, J, ‘Broadcast and Beyond: An Industry Snapshot of Content Control Technologies and Digital Television in Australia’, Centre for Media and Communications Law, Melbourne, 2007 Hosted Conferences • MediaCommLaw Conference 2006, Melbourne, 17 November 2006: a by-invitation event for Australian academics from the areas of media law, copyright law and media studies to workshop chapters for a forthcoming edited book about digital television • ‘Broadcast and Beyond: An Industry Snapshot of Content Control Technologies and Digital Television in Australia’, Sydney and Melbourne, 4 April 2007
Funded Research 17 funded research Selected Grants in Progress
Chief Investigator: Tim Lindsey Research Fellow: Kirsten Steiner Research Assistants: Alfitri and Rozanna Latiff Islamic Law in Contemporary Malaysia, Singapore and Brunei: The Anglo-Malay Madhhab ARC Discovery Project (2005–2007)
Project Description and Objective This has major implications for law. Unlike many other The research project aims to offer a more complete religions, law is at the heart of Islam – Islam, in fact, has understanding of the interaction between Islam and been described as a religion expressed in legal terms. law, focusing on positive law, in the archipelago to This convergence of ‘religion’ and ‘law’ creates tensions Australia’s North. Through a detailed examination of legal for the operation of Islamic law in modern nation states. theory, current intellectual debates, legal institutions and In simple terms, the significant question is how to substantive law in Malaysia, Singapore and Brunei it will reconcile modern ‘secular’ law and thus, the legal system update current knowledge but will also build bridges with and government, drawn from the mystical revelations of Muslim scholars and lawyers in the region. Muhammad, the prophet of Islam in 7th century Arabia. This project examines in detail the tension between the In the last two centuries, this has been done throughout formal legal systems in Anglo-SEAsia and their informal Asia either by the colonial powers or by voluntary adoption challenges. The project analyses the sources of Islamic of Western systems (codes, statutes, judicial decisions regulation; judicial and non-judicial institutions involved in and judicial institutions) without any convincing resolution Islamic matters; and some selected judicial case studies of the problems of state or legal legitimacy for Muslims. on Islamic law. In Malaysia, Singapore and Brunei sharî’ah has therefore been filtered through Anglo-common law state institutions. Current Findings Islamic law is now largely understood in Western- This project focuses on Islamic law (sharî’ah) and its role derived forms, at least as far as the interventionist state in the modern Malay states of Southeast Asia. Islam is concerned. In Malaysia, Singapore and Brunei this is accepts no authority higher than that of God. It proclaims referred to as the ‘Anglo-Muslim madhhab’, a sophisticated itself to be a complete and authoritative revelation for all jurisprudence for Muslims which makes only very limited time. It is thus for Muslims the source of absolute spiritual reference to the classical sharî’ah but draws heavily on and temporal power. This is the reason for the theoretical the secular Anglo common law and its legal traditions, incompatibility of Islam with the basic unit of government procedures and principles. The classical sharî’ah definitions throughout the world, the nation state. All states with of ‘obligation’, ‘duty’, ‘validity’, ‘rule’, and ‘law’ are therefore Muslim populations therefore face the challenge of no longer allowed primacy, nor are the traditional Islamic negotiating a relationship between the state and Islam as judicial institutions or the classical fiqh (jurisprudence) the alternative source of authority. This negotiation is also itself, which has been largely marginalised. politically ‘loaded’ in modern nation states because ‘Islam’ is frequently wielded by opposition groups to challenge the legitimacy of the government of the day.
18 Faculty of Law Research Report 2006 funded research Selected Grants in Progress
Progress A substantial amount of research for this project has been completed, including data collection on the relevant judicial and bureaucratic institutions, their origins and development and, in particular, their current practical operation. A detailed examination of recent substantive laws has commenced and further material will be collected during fieldwork in 2007. Work on a major monograph has begun and the findings will be published once the project is completed.
Project Outcomes The findings of the research project will be published in a major scholarly monograph aimed at academic audiences. Conference Presentations • Steiner, K, ‘Islam, Secularism and Human Rights: A Case Study of Freedom of Religion in Malaysia’, Berlin Roundtables on Transnationality: Reframing Human Rights, International Workshop, Humboldt University Berlin, Social Science Research Centre and Irmgard Conix Foundation, Germany, 2006 • Steiner, K, ‘Protecting Human Rights under Religious Laws, National Laws and International Law: A Case Study of Freedom of Religion in Malaysia’, Law and Society Conference, Humboldt University, Germany, 2007
Funded Research 19 funded research Selected Grants in Progress
Chief Investigators: Helen Rhoades, Ann Sanson (Paediatrics Department – University of Melbourne) and Phillip Swain (Dispute Resolution – University of Sydney Law Faculty) Family Lawyers and Child-Focused Dispute Resolution: Managing Inter-Professional Relationships in the Law System ARC Linkage Project (2005–2007) Collaborating Organisation: Attorney-General’s Department
Project Description and Objectives Progress and Current Findings Australia’s family law system is undergoing a rapid During 2006, 30 family law solicitors and 29 dispute transformation. At the centre of this is a policy shift resolution practitioners associated with four well-known away from litigation-based solutions towards a greater family dispute resolution programs were recruited and use of non-adversarial and interdisciplinary approaches to interviewed for the project, using a 37 question interview resolving parental conflict, and particularly the promotion guide that canvassed seven thematic domains. The of child-focused dispute resolution processes. This multi- interview transcripts were analysed using the NVivo7 disciplinary project aims is to investigate the ways in which data management software program and sorted into family lawyers and family dispute resolution practitioners 41 thematic nodes for each professional grouping. professionals (such as mediators) manage their working Commonalities and disparities among the responses relationships, with a view to understanding the facilitators of participants, including service-specific trends, were and inhibitors of successful inter-professional practices identified through the formulation of sub-nodes, and a in the family law system. The study involves an in-depth second holistic narrative analysis of each interview was qualitative examination of professional practices where also conducted. A report on these findings – ‘Working an effective working relationship between the two on their Relationships: Inter-Professional Practices in professional groups has been identified, and a comparative a Changing Family Law System’ – was delivered to analysis of attitudes and approaches across these groups the Attorney General’s Department in late 2006, with more generally. The research will explore the norms and preliminary recommendations for reform. beliefs that underpin professional practices, including On completion of the report, the interview data themes how lawyers and family dispute resolution practitioners were used to design an online questionnaire which was currently accommodate their multiple responsibilities forwarded to approximately 2300 family lawyers (via to clients, the court, and to promote the best interests the Family Law Section of the Law Council of Australia of children, as well as the role of lawyers in third party and the various state Legal Aid Commissions) and 600 dispute resolution processes. The key objective of the family dispute resolution practitioners (via the peak bodies project is to produce information that will assist the design for community-based agencies, the National Legal Aid of better integrated dispute management services for Commission secretariat, and the 15 currently operating separated families, including the creation of appropriate Family Relationship Centres) throughout Australia in professional development programs. February 2007. The online survey was kept open for the month of February, and 456 practitioners completed the questionnaire: 134 dispute resolution practitioners and 322 family lawyers. The project team commenced conducting a statistical analysis of these data using SPSS in March 2007 and the team members are currently in the process of writing a report on these findings.
20 Faculty of Law Research Report 2006 funded research Selected Grants in Progress
Project Outputs Remaining Aspects of the Project to be To date the project has resulted in a major report on the Completed Stage one findings and several conference presentations. The Attorney General’s Department has agreed to Additional conference presentations will take place later provide additional funding to the research team to conduct in 2007, along with two subsequent reports, including follow-up telephone interviews with the 63 practitioners a final report in December 2007, and an article based who left contact details on the questionnaire and indicated on a selection of the stage one data analysis has been their willingness to be contacted about the project. submitted for publication. A copy of the Stage one report A research assistant will be engaged for this purpose and was provided on request to Justice Canada, which is the interviews will be recorded and transcribed. During the currently in the process of implementing the Canadian second half of the year, the three researchers will conduct federal government’s Child Centred Family Law Strategy. a comparative analysis of the three data sets and write a The publications for 2007 include: Final Report on the project to be delivered to the Attorney • Rhoades, H, Sanson, A, Astor, H and Kaspiew, R, General’s Department by 30th December 2007. ‘Working on their Relationships: Inter-Professional Practices in a Changing Family Law System’, Research Report 1 (2006) • Rhoades, H, ‘Family Dispute Resolution and Inter- Professional Practices in a Changing Family Law System’, National Legal Aid Dispute Resolution Forum 2007, Canberra, 2007 • Rhoades, H, and Astor, H, ‘Hybrid Professionals? – Fashioning Family Lawyers and Moulding Mediators’, Law & Society Association and Research Committee on Sociology of Law Meeting, Humboldt University, Berlin, 2007 • Astor, H, O’Connor, M, Rhoades, H and Sanson, A, ‘Inter-Professional Practices of Mediators and Family Lawyers in the Family Law System’, Paper to be presented to the Australian Psychological Society Annual Conference, Brisbane, September 2007 • Rhoades, H and Astor, H, ‘Equal Time, Family Dispute Resolution, and Child-Focused Practice: A System in Tension’ (forthcoming publication)
Funded Research 21 funded research Selected Grants in Progress
Chief Investigators: Loane Skene, Mary Anne Aitken (Murdoch Children’s Research Institute) and Martin Delatycki (Murdoch Children’s Research Institute) Researchers: Lisette Curnow (Genetic Health Services), Laura Forrest (PhD Candidate, Murdoch Children’s Research Institute) Communicating Genetic Information in Families: Practical, Legal, Social and Ethical Issues ARC Discovery Project (2005–2007)
Genetic information by its nature has significant There are also legal implications for testing agencies implications not only for the person being tested but which may assume that warnings about genetic risks have also for the person’s blood relatives. If family members been passed on to the relatives. If relatives have not been know that they are at risk of having a familial genetic warned and therefore miss the opportunity to be tested condition, they can have themselves tested for the family and to avoid a serious risk to their life or health, could they mutation and, if they are affected, they may be able to sue the testing agency for not informing them? prevent suffering a chronic or debilitating condition, or Genetic counsellors and other health professionals could, even dying prematurely. of course, themselves inform relatives about the family For this reason, people who are being tested for genetic risk but they have been constrained by privacy legislation conditions are commonly advised that they should tell and the common law principles of confidentiality of their close blood relatives about the test result and should medical communications. There are always been limited encourage the relatives to have their own test, especially exceptions to the privacy and confidentiality requirements. where there is an effective intervention. For example, In particular, they could be overridden when there is a the medical condition of Familial Adenomatous Polyposis ‘serious and imminent risk’ to another person if information (FAP) causes polyps, which may be cancerous, to form is not divulged. Recently, the federal Privacy Act was in the bowel. These polyps may lead to an early death if amended so that health professionals are now permitted they are not discovered and removed. A family member to disclose genetic information to genetic relatives so they who knows of the family risk may be tested to see if he or might avoid a serious risk, even if the risk is not imminent she carries the mutation and, if so, can have regular bowel (Privacy Act 1988 (Cth) Sched 3, National Privacy Principle examinations to see if polyps are developing. If ignorant 2.1 (ea)). This amendment was recommended by the of the risk it may be too late to have the surgery and the Australian Law Reform Commission and the Australian person may die. Health Ethics Committee to enable disclosure of serious Despite the need for relatives to be informed of their genetic risks to relatives (ALRC 96 Essentially Yours: The risk, genetic counsellors sometimes suspect that people Protection of Human Genetic Information in Australia, seeking genetic tests do not in fact tell their relatives, 1993, Rec 21.1), However, in practice, health professionals even when they are advised to do so. There may be may be reluctant to approach relatives directly, even if they many reasons for this. The people tested may not be in can find them; and it is naturally difficult to contact people touch with their relatives, or they may not be on such out of the blue with news that they may not want to hear. close terms with them that they feel able to discuss very Also, the fact that the law has been changed to enable personal medical details. They may be reluctant to be the serious risks to be disclosed to relatives, even without the bearer of bad news, or feel that they may be blamed or consent of the person who was first tested, may increase resented for bringing ‘bad genes’ into the family. They the legal risk of genetic testing agencies. If it is alleged may find the genetic information complex and difficult that they or their employees were negligent in failing to to explain. Whatever the reasons, reluctance to inform disclose a serious risk to relatives, they no longer have relatives has obvious health implications for the relatives. the legal defence that disclosure of the risk would have contravened the privacy legislation.
22 Faculty of Law Research Report 2006 funded research Selected Grants in Progress
The circumstances in which genetic information is actually given to relatives is therefore increasingly important, especially given the burgeoning number of genetic tests that are becoming available. From a health perspective, it is generally thought best that people who have been found to have a genetic condition should tell their relatives themselves, assisted by health professionals as necessary, with the offer of formal follow-up advice if needed. But how often do people in fact tell their relatives and how accurate is the information that they provide? What role do genetic counsellors and other health professionals play in delivering genetic information to family members, and could that be improved? How effective are genetic registers in providing information about familial risks? The study that we are undertaking is designed to explore these questions and ultimately to promote best practice in Australia for accurate and efficient communication of genetic information in families for the promotion of their health and well being. An early part of the research was an examination of the professional guidelines on genetic counselling in Australia and other countries, especially concerning the provision of information to relatives. The findings of this part of the project were presented in posters at the European Society of Human Genetics conference held in Amsterdam in May, 2006, and again at the International Congress of Human Genetics in Brisbane in August, 2006. The results of this research were also published in an international journal: Forrest, LE, Delatycki, MB, Skene, L, Aitken MA, ‘Communicating Genetic Information in Families – A Review of Guidelines and Position Papers’, (2007) European Journal of Human Genetics 1–7. The current research involves a much wider online survey, involving genetic health professionals in many different countries, to investigate their current practice when working with patients diagnosed with a genetic condition with familial implications. It is hoped that understanding more about whether or not relatives are being informed and how they are being informed will enable health professionals to work more effectively to improve the health of relatives at risk and also to avoid potential liability exposure for themselves and their employers.
Funded Research 23 funded research Selected Grants in Progress
Chief Investigators: Lee Godden and Maureen Tehan ‘Managing Competing Claims to Land and Resources – Does Property Law Promote Sustainability” ARC Discovery Project (2005–2007)
Project Description and Objectives Progress This project aims to provide a conceptual legal analysis of Significant research on conceptual analyses of property the effectiveness of property law as a means of resolving law, land reform and resource management has been and managing competing claims to land and resources completed; including extensive literature reviews and in the context of sustainability. A key factor in promoting the development of a bibliographic/ reference collection. sustainability is the management of the many competing The literature formed the background for a major peer claims and overlapping interests within Australian society reviewed chapter on theoretical analyses of property law for access to, and use of, land and natural resources. and indigenous communal land title. Further conceptual Historically, property law has provided the main legal analyses of the role of property, privatisation and regime for regulation of land and resources. Yet the extent globalisation were conducted at several levels with a major to which property law is the most viable legal model theoretical piece on globalisation and its association with for ensuring sustainability is widely debated. Alternative the controls exercised over space and property being legal regimes are emerging, but there is little effective completed by Lee Godden. integration across various areas of land and resource A chapter on institutional changes in the governance of management. To this end the project aims to provide: water rights/ property within Australia by Lee Godden • an integrated conceptual analysis of property law and was completed and appeared in an OUP publication by the institutional structures that are used to regulate the Academic Advisory Group on Energy and Natural access to land and resources in Australia; Resources to the International Bar Association in March • an exploration of the changing conceptions of property 2006. Analyses related to theoretical developments law, including a comparative review of South Africa and in property rights/natural resource governance and New Zealand land management and resource reforms; sustainability are ongoing; with this work informing Lee Godden’s research for an interdisciplinary environmental • an examination of recent trends in Australian land and law monograph (2008). The work examines the changing resource management, such as the rise of agreement orientation of environmental regulation and the moves and community based regulatory regimes, and contrasts towards market-based mechanisms/contractual regimes these with regimes relying more directly on property– as a means to promote sustainability. based models; Primary legal and social research has continued on • an assessment of alternative legal models for regulating a number of research fields relating to the trends in land and resources via case studies in indigenous managing competing claims to land and resources. land-use agreements, water trading and community Developments in law reform related to communal land title conservation initiatives; were prominent within Australia during 2006. Accordingly, • an analysis of the effectiveness of the various legal the research plan took into account these developments models in resolving and managing competing claims and a workshop was held in July 2006 at the University and in promoting sustainability; of Melbourne which examined law reform and world • an examination of the manner in which these primary wide trends in communal land holding. Participants at the access models need to be situated in integrated, flexible conference were drawn from Australia, South Africa and institutional structures that take into account social, New Zealand. The workshop programme featured a series cultural and technological changes; and of papers related to managing claims to communally held land and resources. The papers were arranged thematically • to incorporate new ways of thinking about property with an initial introduction to the ARC project and law and property rights, and the viability of alternative workshop aims, followed by an overview of International legal models.
24 Faculty of Law Research Report 2006 funded research Selected Grants in Progress
land tenure developments. Overseas case studies drawn Future work from South Africa, New Zealand and North America Field work case studies, principally in the areas of water provided an historical and contemporary context to current rights/water trading and native vegetation offsets trading Australian moves to individualise land title over indigenous and their contribution to sustainable land management. people’s land. The final sessions focussed upon Australian The results from these case studies will inform analyses developments and the implications for law reform in on property rights and sustainability and the developments relation to the Northern Territory land rights legislation in institutional and governance forms for resolving which was progressing through federal parliament as the competing claims to these resources. Research related to workshop was being held. environmental governance, natural resource management The papers presented at the workshop are in the and sustainability, largely focused upon water law, will be process of being developed into an edited collection completed as part of the work on the publication: entitled, ‘Sustainable Futures: Comparative Perspectives Godden, L and Peel, J, ‘Environmental Law: Scientific, on Communal Lands and Individual Ownership’ to be Policy and Regulatory Dimensions’, Oxford University published by Glasshouse Press in late 2007. Press (forthcoming 2008). The research has informed policy debate in Australia Completion of research commenced on the resurgence about access and control over indigenous lands. Maureen – resolving claims about access to sensitive land and Tehan took the lead in formulating a submission to the resource areas. Commonwealth Parliament, Senate Community Affairs The research on property law and communal land holding Committee on the proposed amendments to the Land reforms will be consolidated with the edited collection on Rights (Northern Territory) Act, while Lee Godden was communal title (see above). asked to make a presentation arising from this work to a Native Title and Cultural Heritage conference in Brisbane in The final stage of the project is designed to: November 2006. • Incorporate new ways of thinking about property law Lee Godden conducted fieldwork in South Africa related and property rights; to the Discovery project in November 2006. Research was • Examine the viability of alternative legal models and conducted on law reform and land title in South Africa in • Address proposals for social, cultural and institutional November 2006. Extensive research was completed on changes that bridge the gap between an abstract emerging forms of environmental governance and social (and new) understanding of property and competing responsibility in respect of competing claims to national imperatives in land natural resource management. parks and the development of world heritage protected areas management during this period. These analyses will incorporate key insights from the earlier literature and scoping articles, together with the Maureen Tehan conducted preliminary research in the fieldwork and case studies. The projected outcomes UK in the second part of 2006 for the articles/monograph include a conceptual analysis of legal frameworks and on reconceptualising property law which will be finalised institutional governance structures which seeks to expand towards the end of the project. She examined emerging and reform ‘traditional property’ ideas to incorporate trends in cultural heritage management as an alternative cultural diversity and to resolve competing claims in a regime for managing competing claims to land and more negotiated and collaborative manner. The proposed resources. models and frameworks can serve as a reference point to inform policy development and law reform. The two major outcomes of the project from this perspective will be either a series of peer reviewed articles in prominent international legal journals or a monograph. The form will depend upon the rapidity with which developments in these fields of policy and law reform emerge.
Funded Research 25 funded research Selected Grants in Progress
Selected Project Outcomes and Publications • Godden, L, ‘Australian Water Law and Policy’, • Godden, L and Tehan, M, ‘Translating Native Title to Presentation delivered to visiting delegation from China: Individual ‘Title’ in Australia: Are Real Property Forms Ministry of Water Resources, Melbourne, 2006 and Indigenous Interests Reconcilable?’ in E Cooke (ed), • Tehan, M, ‘The Wide Barren Landscape Of Native Title Modern Studies in Property Law IV, Hart Publishing, In Australia: Indigenous Spaces In Urban Environments’, (in press 2007) Law School University of Manchester, 2006 • Godden, L, ‘Efficiency and Environmental Sustainability: • Godden, L, ‘Sustainability of Access to Land and Using Market Mechanisms for Water Resources Adequate Housing in the Context of the New Regulation in Australia’ in B Barton, A Ronne and ‘Contractualisation’ Paradigms: Deregulation, L Hernandez (eds), The Changing Face of Regulation Marketisation and Privatisation’, Towards Realising the in the Energy and Natural Resources Sectors, Right to Adequate Housing A Roundtable Discussion Oxford University Press (2006) with Miloon Kothari UN Special Rapporteur on the • Godden, L, ‘Terrorism: Reinvoking the Barbarian to Right to Adequate Housing, University of Melbourne, Secure the Space of Civilisation’ (2006) 24 Australian Melbourne, 2006 Feminist Law Journal 69–93 • Godden, L, ‘The Invention of Tradition: Property Law and • Tehan, M and Godden, L, Aboriginal Land Rights its Role in the Appropriation of the South’, Of the South (Northern Territory) Amendment Bill 2006: Long Term Symposium, Griffith University, Brisbane, 2006 Lease Provisions, Submission to Senate Community • Godden, L and Tehan, M, ‘Translating Indigenous Title Affairs Committee, Department of the Senate, Australia, to Individual Title in Australia: Do Property Concepts (2006) Provide a Viable Model?’, The Reading University • Tehan, M, ‘Book Review: Ben Boer & Graeme Wiffen Property Law Conference, Reading, UK, 2006 Heritage Law In Australia’ (2006) 29 University of New South Wales Law Journal 355 • Godden, L, ‘Amendments to the Northern Territory Land Rights Act (C’th)’, 13th Cultural Heritage and Native Title Conference, Brisbane, 2006
26 Faculty of Law Research Report 2006 centres and institutes
Centres and Institutes 27 centres and institutes Asian Pacific Centre for Military Law
The Asia Pacific Centre for Military Law (APCML) was Major Events in 2006 established in 2001 as a collaborative initiative of Defence Legal in the Australian Department of Defence and the Public Lecture ‘International Humanitarian Law and Melbourne University Law School, to facilitate cooperation Contemporary Armed Conflict: Can the Law Survive?’ amongst military forces of the Asia Pacific Region in 13 September 2006 the research, training and implementation of the laws APCML 2006 Sir Ninian Stephen Visiting Scholar, governing military operations. Professor Michael Schmitt, Director of the Program in The APCML aims to promote greater understanding of, Advanced Security Studies at the George C. Marshall and increased respect for, the rule of law in all aspects of European Center for Security Studies in Garmisch- military affairs both within the Australian Defence Force Partenkirchen, Germany, presented this lecture on how and amongst militaries in the Asia Pacific Region. the changing nature of warfare is affecting the content, It operates from both a military and a university node. application and interpretation of the Law of Armed Conflict and International Humanitarian Law, with particular Its activities include: reference to the use of technology in armed conflict. • Preparing and delivering training programs; The text of the lecture will be published in 2007 in the • Organising conferences, workshops, seminars and Melbourne Journal of International Law. lectures; Major Research Projects in the APCML • Promoting academic research; The Challenges of Peace Operations Project • Developing relevant relationships within the Asia Pacific Region; The APCML is the designated Australian partner organisation to this major international collaborative project, • Developing contacts and mutual exchanges with other established in 1997 by the Swedish National Defence academic/military centres and with leading subject College with the primary objectives of fostering and matter experts; and encouraging a culture of cross-professional cooperation • Providing support for deployments, particularly for peace and partnership with the aim of exploring and conveying operations. more effective and legitimate ways of dealing with multi- national and multi-disciplinary peace operations. Some The Director of the Centre is Professor Tim McCormack, 230 organisations and 50 countries are now participating Foundation Australian Red Cross Professor of International in the project. Australia’s participation in the project is Humanitarian Law. In 2006 the Deputy Director was a key International Engagement Policy objective of the LTCOL Geoff Cameron CSC (to June), and Commander Department of Defence. The ‘challenges’ project has had Dale Stephens CSM RAN (from July). Bruce Oswald a strong influence on UN reform and peace operations CSC and LTCOL Paul Muggleton both serve as Associate practice, as well as being an excellent vehicle for the Directors of the Centre. Other Melbourne Law School staff interchange of information amongst subject matter associated with the Centre are Dr David Blumenthal, experts and policy makers. Dr Helen Durham, Ms Alison Duxbury, Ms Jessica Howard, Dr Andrew Mitchell, Mr John Tobin and Dr Tania Associate Director Bruce Oswald represented the APCML Voon. Dr Bob Mathews is a Research Fellow in the Centre. at the presentation of the multi-national report ‘Meeting the Challenges of Peace Operations: Cooperation and The Centre Administrator is Ms Cathy Hutton and Coordination’ to United Nations Secretary-General Kofi enquiries can be directed to Annan at UN HQ New York on 19th January 2006 and [email protected]. at the combined UN Department of Peace Keeping Operations Workshop on doctrinal development/ Challenges Projects Partners Meeting held in Sweden 26–30 September 2006.
28 Faculty of Law Research Report 2006 centres and institutes Asian Pacific Centre for Military Law
National Security Project Civilian Bombing Project The APCML, jointly with the Australian Department of Professor Tim McCormack and Dr Helen Durham are Defence and the Government of Indonesia, organised participating in a research project entitled ‘Bombing and a second regional workshop for South East Asian the Civilian: A Twentieth Century History’ organised government officials on more effective national by Professor Toshiyuki Tanaka of the Hiroshima Peace implementation of the 1972 Biological Weapons Institute (HPI). The HPI is an international peace research Convention (BWC), in March 2006 in Bali Indonesia. institute committed to help resolve all problems facing the (The first workshop was held at the University of international community by peaceful means. The project Melbourne in February 2005.) is a multi-disciplinary one involving historians, moral The proceedings from both Workshops have been philosophers, ethicists, military strategists, sociologists published and are available on the interactive website at: and political scientists. http://www.law.unimelb.edu.au/events/bwc Dr Durham delivered a paper on the international law relating to the bombing of civilians and civilian property at International Humanitarian Law and Explosive the HPI Workshop held in San Francisco 8–9 December Remnants of War — Reports to the United Nations 2006. Professor McCormack and Dr Durham will also APCML was asked by the Coordinator of the UN’s provide a joint chapter to an edited volume of essays to Working Group on Explosive Remnants of War (ERW) to be published in 2007. prepare a Report to be presented to the UN, analysing the responses to a questionnaire and recommending future action. The questionnaire, distributed to all 90 The Centre’s website can be accessed at: States Parties to the Convention on Prohibitions or http://www.apcml.org Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW), aimed to identify the relevant International Humanitarian Law principles applicable to ERW and to establish the status of implementation of the relevant principles by the various States Parties. The Report was written by Professor Tim McCormack, with APCML research students Sarah Finnin and Paramdeep Mtharu, and presented to the Group of Governmental Experts of the States Parties on 9 March 2006 at the United Nations in Geneva. Following this presentation, Professor McCormack was asked to prepare a second report on expected civilian damage from ERW and the proportionality equation. This Report, written with APCML research student Paramdeep Mtharu, was presented to the Review Conference on the CCW by Ambassador Edvardus Borisovas, the Coordinator of the Group of Governmental Experts, on 9 November 2006.
Centres and Institutes 29 centres and institutes Asian Law Centre
The Asian Law Centre (ALC), an initiative of the University 2006 Selected Publications of Melbourne Law School, commenced activities in 1985. Selected publications by Centre members in 2006 include: It is the first Australian centre established to teach and undertake research on the legal systems within Asia. It is • Whiting, A and Evans, C (eds), Mixed Blessings: Laws, now the largest and pre-eminent centre for the study of Religions and Women’s Rights in the Asia Pacific Asian legal systems in the world. Region, Martinus Nijhoff Publishers: Leiden (2006) The Centre has pioneered extensive programs of teaching • Cooney, S, ‘Labour Market Regulation in Comparative and research on the laws and legal systems of Japan, Perspective’, in S Acharya and C Brassard (eds), Labour China, Indonesia, Vietnam, Taiwan, Malaysia, East Timor Market Regulation and Deregulation in Asia, Academic and the Philippines and has worked also in Korea, Thailand Foundation: New Delhi (2006), 33–54 and Laos and on Islamic, traditional and customary laws. • Lindsey, T, ‘From Soepomo to Prabowo: Law, Violence and Corruption in the Preman State’, in C Coppel (ed), Objectives Violent Conflicts in Indonesia: Analysis, Representation, The Centre’s objectives are: Resolution, Routledge, London (2006), 19–36 • To improve understanding of the laws and legal systems • Lindsey, T, ‘Culture, Insolvency and Legal Orientalism in of Asia; Asia: Reaching for Goering’s Revolver’ in R Tomasic (ed), Insolvency Law in East Asia, Ashgate, Aldershot (2006), • To support the rule of law in Asia; 509–534 • To promote the teaching of Asian law at both graduate • Steele, S, ‘Insolvency Law in Japan’ in R Tomasic (ed), and undergraduate levels, and the teaching of Australian Insolvency Law in East Asia, Ashgate, Aldershot (2006), law in Asia; 13–62 • To promote the development of Asian studies and Asian • Whiting, A, ‘In the Shadow of Developmentalism: languages in other disciplines and to encourage linkages The Human Rights Commission of Malaysia at the with law studies; Intersection of State and Civil Society Priorities’ in • To research the legal framework for trade and C Kumar and D Srivastava (eds), Human Rights and investment in Asia; and Development: Law, Policy and Governance, LexisNexis, • To promote exchanges of scholars and students Hong Kong (2006), 383–407 between Australian and Asian universities and • Evans, C and Whiting, A, ‘Situating the Issues, Framing institutions. the Analysis’, in A Whiting and C Evans (eds), Mixed Blessings: Laws, Religions and Women’s Rights in the Research Projects Asia Pacific Region, Martinus Nijhoff Publishers, Leiden The ALC is associated with four major research projects: (2006), 1–23 • ARC Federation Fellowship: ‘Islam and Modernity: • Harijanti, S and Lindsey, T, ‘Indonesia: General Syari’ah, Terrorism and Governance in South-East Asia’ Elections Test the Amended Constitution and the New (2006–2011) Constitutional Court’ (2006) 4 International Journal of Constitutional Law 138–150 • ARC Discovery Project: ‘Islamic Law in Contemporary Malaysia, Singapore and Brunei: The Anglo-Malay • Lindsey, T, ‘Tribute–Australia’s Asian Law Pioneer: Madhhab’ (2005–2007) Professor Malcolm D H Smith, 21 August 1945–22 June 2006’ (2006) 30 Melbourne University Law Review • ARC Discovery Project: ‘The Media and ASEAN 297–299 Transitions: Defamation Law, Journalism and Public Debate in Indonesia, Malaysia and Singapore’ (2006–2009) • Large Collaborative Grant: ‘Asia Pacific Dispute Resolution Project’
30 Faculty of Law Research Report 2006 centres and institutes Asian Law Centre
Australian Journal of Asian Law • ‘The Identity of Japanese Law: Observations from The Asian Law Centre jointly publishes the Australian Recent Academic Meetings in Japan’, Professor Journal of Asian Law (AJAL) with the University of Malcolm Smith (2 May, 2006) Washington at Seattle and the Australian National • ‘Islam in Southern Thailand: The Role of Islamic University. A peer-refereed scholarly journal, the AJAL Education’ (with the Centre for the Study of is edited from Melbourne and is now a leading forum for Contemporary Islam), Mr Phaisan Toryib, Dr Niloh debate for scholars and professionals concerned with the Wae-u-Seng and Mrs Lamaismart Prachwuttikul laws and legal cultures of Asia. (15 May, 2006) Asian Law Online • ‘First World Convention and Third World Corruption: The http://www.law.unimelb.edu.au/alc/bibliograph OECD Convention on Combating Bribery in International Business Transactions and the Philippines’, Ms Eloisa Asian Law Online, launched in 2002, is the first online Alcordo (17 May, 2006) bibliographic database of Asian law materials in the world. Offered to the public as a free service to assist students • ‘Policing Religion: Singapore and the Maintenance of and scholars of Asian legal systems, it is a collection Religious Harmony Act’, Ms Jothie Rajah of English language materials on Asian laws available (22 May, 2006) throughout the world and includes books, chapters in • ‘Islam and Modernity in Indonesia: An Open Discussion’, books, journal articles and theses. Professor Nasaruddin Umar The database is organised according to countries in East (23 May, 2006) Asia and a selection of basic legal areas. The database • ‘Can Mining Regulation Work in Indonesia? Balancing can be searched for any word or a more specific advanced Environmental Protection and Resources Development search can be conducted. The database is also linked to a in the Newmont Case’, Mr Windu Kisworo list of useful websites for each country and legal area. (23 August, 2006) • ‘Are ‘Asian Values’ Universal? International Discourse Seminars on Human Rights Policies’ (PhD Completion Seminar The Centre hosted the following seminar series: with the Office for Research), Ms Kerstin Steiner (25 September, 2006) Occasional Seminar Series In this series, distinguished scholars and leading • ‘Judicial Review in Indonesia: Between Civil Law and practitioners present on current Asian legal issues. Accountability?’ (PhD Completion Seminar with the Office for Research), Mr Simon Butt (9 November, 2006) • ‘The East Timor Legal System and Current Developments’, Mr Tiago Amaral Sarmento Asian Legal Dialogues (19 June, 2006) These seminars on Asian issues are conducted in Asian • ‘Jemaah Islamiyah, Al Qaeda and Regional Terrorism: languages. Kinship and Family Links’ (with the Centre for the Study • ‘Being a Judge in Japan’ (Japanese), Judge Takaaki of Contemporary Islam), Mr Noor Huda Ismail Miura (7 February, 2006) (8 November, 2006) • ‘Studying Law in Australia’ (Japanese), Mr Ryokichi Brown Bag Seminar Series Asaka and Mr Kenji Inoue (9 February, 2006) In this series, postgraduates, academics or visitors who • ‘Reform of Japan’s Civil Code’ (Japanese), Gakushuin are researching and writing on Asian legal topics present University Law School Professors papers on work in progress or rehearse a conference (16 March, 2006) or article submission. The forum provides a collegial • ‘Wajah Undang-undang Perkawinan di Indonesia: Studi atmosphere for peer feedback. Terhadap Perceraian di Bawah Tangan Masyarakat • ‘Regulatory Responses to the Arrival of Hostile Melayu’ [‘Indonesia's Marriage Law: A Study of Takeovers in Japan and Germany: Rummaging Through Unregistered Divorce Among Ethnic Malays’] (Bahasa the International Regulatory Toolbox’, Dr Harald Baum Indonesia), Ms Fatimah Zuhrah (13 March, 2006) (6 June, 2006)
Centres and Institutes 31 centres and institutes Asian Law Centre
• ‘Hukum Islam dalam Konfigurasi Politik: Studi terhadap enables Judges from Japan to experience life in a Syariat Islam dalam Bidang Hukum Keluarga di jurisdiction outside Japan for a twelve-month period Indonesia pada Masa Orde Baru’ [‘Islamic Law in and provides them with a valuable opportunity to study Political Configuration: A Study of Islamic Syariat in the Australian law courses, access university resources and Field of Family Law in New Order Indonesia’] (Bahasa undertake research and training activities, including visits Indonesia), Mr Bani Syarif Maula (6 June, 2006) to Victorian courts and meetings with court personnel.
Major Events Supreme Court of Korea The ALC has hosted judges from Korea since 2006 as part In 2006, the ALC hosted the following major events: of the Supreme Court of Korea Overseas Research and • Roundtable Seminar: ‘Health, Housing and Labour: Study Program. The Program enables Judges from Korea Issues of Construction and Protection’, Professor Pitman to experience life in a jurisdiction outside Korea for up to Potter, Professor Lesley Jacobs, Dr Kathy Morton, one year. Professor He Weidong and Professor Yang Pengfei (24 April, 2006) Chuo Law School Melbourne Summer School • Book Launch: Pip Nicholson and John Gillespie: Each year since 2005, the ALC has hosted the Chuo Law ‘Asian Socialism and Legal Change: The Dynamics School Melbourne Summer School. The Summer School of Vietnamese and Chinese Reform’, launched by was initially arranged in conjunction with the late Professor Professor Stephanie Fahey (3 May, 2006) Malcolm Smith, who was then Professor of Law at Chuo University. While in Melbourne, the Chuo Law School • Workshop: ‘Paradigms: Comparative Legal Studies in students study subjects for credit and enjoy interacting Asia’ (18 July, 2006) with Melbourne Law School students participating in the • International Conference: ‘Government of the Shadows: Summer subject ‘Issues in Japanese Law’. Global Governance, Para-Politics and Organised Crime’ (with Monash Law School) Staff (10–12 August, 2006) The Centre was founded by the late Professor Malcolm • ALC/CSCI Panel: ‘Islamic Syari’ah Codes in Indonesia’, Smith. The current Director is Professor Tim Lindsey, Professor Tim Lindsey, Mr Andi Amiruddin and Mr ARC Federation Fellow. The Centre’s Associate Directors Jeremy Kingsley (14 August, 2006) are Dr Sarah Biddulph (China), Dr Sean Cooney, Mr Andrew Godwin (Asian Commercial Law), Dr Pip Melbourne Asia Policy Papers Nicholson (Vietnam), Ms Stacey Steele (Japan) and Ms Amanda Whiting (Malaysia). Ms Kathryn Taylor is the The Melbourne Asia Policy Papers are an initiative of the Manager of the Centre and Ms Kelly McDermott is the Asian Law Centre, the Asia Institute, the Asialink Centre, Administrative Assistant. Mr Jeremy Kingsley, Ms Helen the Asian Economics Centre and the Australian Centre for Pausacker and Ms Kerstin Steiner are the Centre’s principal International Business at the University of Melbourne. Research Assistants. The Melbourne Asia Policy Papers aim to strengthen Australia’s engagement in Asia through the publication The Centre’s website can be accessed at : and dissemination of a series of non-partisan policy option http://www.law.unimelb.edu.au/alc papers, which are distributed among leading government, media, academic, and business officials in Australia. The Centre can be contacted by email at: Visitor Programs [email protected] The ALC regularly hosts visits by renowned international scholars. It also participates in the following programs: Supreme Court of Japan Each year since 2003, the ALC has hosted a Judge from Japan as part of the Overseas Training and Research Program of the Supreme Court of Japan. The Program
32 Faculty of Law Research Report 2006 centres and institutes Centre for Employment and Labour Relations Law
The Centre for Employment and Labour Relations Law • Dr Joo-Cheong Tham, Lecturer, Law Faculty, University (CELRL) was established in the Faculty of Law in 1994. of Melbourne, member of the Centre for Employment Its broad aims are to consolidate the teaching of, and and Labour Relations Law, on ‘Are casual employees research into labour law at the University of Melbourne, to legally precarious? An analysis’ (26 May, 2006) contribute to the development of labour law teaching and • Associate Professor Maria Lorena Cook, Department research throughout Australia, and to engage with labour of International and Comparative Labor, School of law scholars throughout the world. Centre members Industrial and Labor Relations, Cornell University, in are responsible for teaching labour law subjects in the Ithaca, New York, on ‘Between Flexibility and Rights: undergraduate and graduate programmes in the Faculty Trends in Labour Law Reform in Latin America’ of Law, with the graduate programme leading to both a (8 June, 2006) Masters Degree and/or a Graduate Diploma specialising in labour law. • Dr Deirdre McCann, International Labour Office (ILO) Geneva, Switzerland, on ‘Measuring Working Time The Centre’s work is guided by an Advisory Board, whose Laws: Texts, Observance and Effective Regulation’ members represent the legal profession, academia and (27 June, 2006) key stakeholders in Australian labour relations law. • Associate Professor Rochelle Le Roux, Faculty The Centre is fortunate to receive financial support from a of Law, University of Cape Town, South Africa. She number of law firms in Melbourne that act as its sponsors. is also Deputy Director of the Faculty’s Institute of The Centre publishes working papers and monographs. Development and Labour Law on ‘Race, Discrimination and Employment in South Africa: What are the Limits of Current Members an Employer’s Legal Obligations?’ (19 July, 2006) Mr Colin Fenwick (Director), Ms Anna Chapman, Dr Sean • Dr John Howe, Senior Lecturer, Law School, Cooney, Associate Professor Beth Gaze, Dr John Howe, University of Melbourne, member of both the Centre Ms Meredith Jones, Ms Shelley Marshall, Professor for Employment and Labour Relations Law, and the Richard Mitchell, Ms Charlotte Morgans, Mr Glenn Centre for Corporate Law and Securities Regulation Patmore and Dr Joo-Cheong Tham. at Melbourne Law School, on ‘Light-touch’ Labour Labour Law Seminar Series Regulation as a State Government Response to Work Choices’ (24 August, 2006) These free public seminars are intended to be of interest to a wide audience including academics, members of • Gaby Ramia, Senior Lecturer, Director of the Graduate the legal profession, and those engaged in the day to day Program in Public Policy and Management, Department business of industrial relations and/or human resource of Management, Monash University, on ‘Rivals, management. They provide a forum for the presentation Acquaintances, Friends or Bedfellows? The Changing and discussion of preliminary research results and to that Interplay Between Labour Law and Social Security Law’ end are designed both to be informative and to engender (6 October, 2006) critical discussion and debate. • Anthony Forsyth, Senior Lecturer and Director, • Mr Steve Gibbons, Director of Labour Rights, Ergon Corporate Law & Accountability Research Group, Associates, on ‘The International Financial Institutions Department of Business Law & Taxation, Monash and Labour Standards – Emerging Issues’ University, on ‘The Future of Employee Representation: (17 March, 2006) Policy Options for Australia’ (27 October, 2006) • Professor J.H. (Rip) Verkerke, Professor of Law, • Dr Phil Syrpis, Senior Lecturer in Law, University of Director of the Program for Employment and Labor Law Bristol, UK, on ‘The Methods and Rationales of EU Studies, University of Virginia, on ‘Legal Ignorance and Intervention in Labour Law’ (12 December, 2006) Information-Forcing Rules’ (24 March, 2006) • Associate Professor Beth Gaze, and Anna Chapman, Senior Lecturer, both members of the Centre for Employment and Labour Relations Law, Melbourne Law School, on ‘Work Choices or No Choices’ (19 April, 2006)
Centres and Institutes 33 centres and institutes Centre for Employment and Labour Relations Law
Sponsors’ Seminar Series Key Centre research projects include: The Centre for Employment and Labour Relations Law • Law and Labour Market Regulation also coordinates a series of seminars exclusively for the • Regulating Work and Workplaces: Contracting and members of the firms that are its Sponsors. Bargaining in Enterprises • The Hon. John LLoyd, Australian Building and • Labour Regulation in East Asia Construction Commissioner, on ‘Lawful Conduct in the Building Industry’ (1 February, 2006) • Legal Protection of Workers’ Human Rights: Regulatory Changes and Challenges • Mr Stan Krpan, Worksafe Victoria, on ‘Occupational Health and Safety Law: An Enforcer’s Perspective’ • Private Profits from Prison Labour (27 April, 2006) • Law and Labour Market Regulation in Southern Africa • Commissioner Greg Smith, Australian Industrial • Partnerships at Work: The Interaction between Relations Commission, on ‘The Industrial Relations Employment Systems, Corporate Governance and Commission after Work Choices’ (5 October, 2006) Ownership Structure • Professor Judith Sloan, Australian Fair Pay • Employee Happiness and Labour Law Commission, on ‘A Commissioner’s View on the • Revisiting the Republic Australian Fair Pay Commission’s First Determination’ (8 December, 2006) • Work/Family Conflict and Australian Labour Law • Combating the Financing of Terrorism: Enhancing Centre Research Security or Compromising Civil Rights and Democracy? Centre members are engaged in research in diverse • Political Finance in Australia: A Secret and Cartelised aspects of the broad field of labour law and labour market System? regulation. Areas of particular interest and expertise include the regulation of individual work relationships, • Labour Law in an Era of ‘Self-Regulation’ discrimination in the labour market, the operation of courts • Coherent, Independent and User-friendly? Participant and other dispute resolution institutions, the regulation of Perceptions of Social Security Administrative Review occupational health and safety, collective labour relations, Processes in Australia and Britain comparative labour law, international labour standards, • Improving the Effectiveness of Australia’s Anti- and unemployment law and policy. The Centre is engaged Discrimination Laws in ongoing research on the constitution and regulation of labour markets, both in Australia and abroad, with Submissions work being done on labour law in the Asia-Pacific region, Southern Africa, and Europe. The Centre also has a January number of academic associates and research and teaching J.C. Tham associates, both from within the Faculty of Melbourne Submission to the Parliamentary Joint Committee on Law School and from around Australia and the world. Intelligence and Security’s Inquiry into to the listing of the Kurdish Workers Party as a ‘terrorist organisation’ under the Criminal Code, 23 January 2006, seven pp (together with Brian Walters SC for Liberty Victoria)
34 Faculty of Law Research Report 2006 centres and institutes Centre for Employment and Labour Relations Law
February Commissioned Reports J.C. Tham C. Fenwick, J. Howe, S. Marshall and I. Landau, ‘Labour Submission to the Australian Law Reform Commission’s and Labour Related Laws in Micro and Small Enterprises: Review of Sedition Laws,10 April 2006, 13 pp (with Innovative Regulatory Approaches’. This Report was members of the Centre for Media and Communications commissioned by the International Labour Organisation’s Law, Faculty of Law, University of Melbourne) InFocus Program on Boosting Employment through Small J. Howe Enterprise Development. Submission to Corporations and Markets Advisory Committee inquiry into Corporate Social Responsibility The Director of the Centre is Mr Colin Fenwick. March J.C. Tham The Centre’s website can be accessed at: Submission to the Security Legislation Review, 21 March http://celrl.law.unimelb.edu.au/ 2006, 24 pp (together with Brian Walters SC for Liberty Victoria) The Centre can be contacted by email at: [email protected]. April J.C. Tham Submission to the Senate Finance and Public Administration’s inquiry into the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005 (Cth), 23 February 2006, 20 pp June A. Chapman Submission, National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work- Related Entitlements and Benefits, Human Rights and Equal Opportunity Commission August J.C. Tham Submission to the Attorney-General’s Department in relation to the 2nd Exposure Draft of the Anti-Money Laundering and Counter-Terrorist Financing Bill 2006 (Cth), 4 August 2006, 10 pp (for Liberty Victoria) November J.C. Tham Submission to the Senate Legal and Constitutional Affairs Committee’s inquiry into the Anti-Money Laundering and Counter-terrorism Financing Bill 2006 (Cth), 10 November 2006, 16 pp (for Liberty Victoria)
Centres and Institutes 35 centres and institutes Centre for Corporate Law and Securities Regulation
The Centre for Corporate Law and Securities Regulation Publications (CCLSR) commenced in January 1996 in recognition of In 2006, the following books and research reports were the growing importance of corporate law and securities published by Centre members: regulation nationally and internationally, and in recognition of the University of Melbourne’s strength in these areas. • Hanrahan, P, Ramsay, I and Stapledon, G, Commercial Applications of Company Law (7th ed), CCH Australia, The objectives of the Centre and its members are: North Ryde (2006) • To undertake and promote research on corporate law • Hanrahan, P, Ramsay, I, Stapledon, G, Yeo, V and Lee, J, and securities regulation; Commercial Applications of Company Law in Singapore • To undertake the teaching of corporate law and (2nd ed), CCH Asia Pacific, Singapore (2006) securities regulation subjects within the Faculty of Law • Ramsay, I and Lew, N, Corporate Law Reform and and the Faculty of Economics and Commerce at the Delisting in Australia, Centre for Corporate Law and University of Melbourne and to develop and promote Securities Regulation, University of Melbourne, innovative teaching methods and teaching materials; Melbourne (2006) • To host conferences to disseminate the results of • Miller, C, Campbell, R and Ramsay, I, ‘The Takeovers research undertaken under the auspices of the Centre Panel: An Empirical Study’ (2006) 3 Macquarie Journal or in other programs associated with the Centre; of Business Law 199–240 • To develop and promote links with academics in other • Barnes, A, Josev, J, Lenne, J, Marshall, S, Mitchell, R, Australian universities and in other countries who Ramsay, I and Rider, C, Employee Share Ownership specialise in corporate law and securities regulation; Schemes: Two Case Studies, Centre for Corporate Law • To establish and promote links with similar bodies, and Securities Regulation and Centre for Employment internationally and nationally, and provide a focal point and Labour Relations Law, University of Melbourne, in Australia for scholars in corporate law and securities Melbourne (2006) regulation; • Ramsay, I and Saunders, B, ‘Litigation by Shareholders • To promote close links with peak organisations involved and Directors: An Empirical Study of the Statutory in corporate law and securities regulation; Derivative Action’ (2006) 6 Journal of Corporate Law • To promote close links with those members of the legal Studies 397–446 profession who work in corporate law and securities Members of the Centre for Corporate Law also published regulation; and a significant number of journal articles in 2006. • To attract students of the highest calibre to the graduate program and provide opportunities for their involvement Seminars and Conferences in corporate law research projects. A significant part of the Centre’s activities is the holding of seminars and conferences on important issues. In 2006 The activities of the Centre include teaching (members of the Centre held the following seminars and conferences: the Centre teach or coordinate the teaching of 35 specialist subjects), maintaining a strong research program, • Corporate Governance and the Management of conducting conferences and seminars and publishing a Labour: Australian Perspectives monograph series. (7 and 8 December 2006) The Director of the Centre is Professor Ian Ramsay. This conference was co-hosted with the Centre for Employment and Labour Relations Law, The University of Melbourne and the Corporate Law and Accountability Research Group, Department of Business Law and Taxation, Monash University
36 Faculty of Law Research Report 2006 centres and institutes Centre for Corporate Law and Securities Regulation
• Guest at the Table? Independent Directors • 2006 Corporate Governance Conference in Family Controlled Public Companies (24 February 2006) (6 December 2006) Speakers: Professor Ronald J Gilson, Professor of Law Speaker: Professor Deborah Demott, David F Cavers, and Business, Stanford Law School and Professor Professor of Law, Duke University of Law and Business, Columbia Law School; Peter • The Impact of Stock-Market Listing on Employment Doherty, Principal, Capital Partners; Nicholas Moore, Practices? A Comparison of Listed and Privately- Executive Director, Macquarie Bank; Anton Tagliaferro, Owned Workplaces in the UK Investment Director, Investors Mutual Limited; Stephen (29 September 2006) Mayne, Founder of crikey.com.au; Professor Kevin Keasey, Halifax Bank Professor of Financial Services, Speaker: Andrew Pendleton, Professor of Human Leeds University Business School; Professor Geof Resource Management, Department of Management Stapledon, Managing Director, ISS Australia and Studies at the University of York, United Kingdom Professor of Law, University of Melbourne; Mike Hogan, • Legal Professional Privilege Partner, Human Capital, Ernst & Young; Pat Handley, (24 August 2006 Sydney and 30 August 2006 Chairman, Pacific Brands Limited; Mark Jankelson, Melbourne) Head of Leadership, Capability & Performance, ANZ; Robert Fowler, Investments and Governance Manager, Speakers: Kirsten Grey, Legal Manager, BHP Billiton HESTA Super Fund. This conference was co-hosted with (Sydney and Melbourne); Emilios Kyrou, Senior Partner, Institutional Shareholder Services Mallesons Stephen Jaques (Sydney and Melbourne); Stephanie Martin, Deputy Commissioner, Australian Taxation Office (Sydney and Melbourne) Corporate Law Judgments website The Centre also hosts the Corporate Law Judgments • Shareholder Litigation website, which contains corporate law judgments of the (13 June 2006 Sydney, 14 June 2006 Melbourne) Australian State and Federal courts. As of December Speakers: Ashley Black, Partner, Mallesons Stephen 2006, there were 4551 judgments on the website. Jaques (Sydney and Melbourne); Kathleen Harris, Special Counsel, Mallesons Stephen Jaques (Sydney Further information and Melbourne); Professor Ian Ramsay, Director, Centre The Centre’s website can be accessed at: for Corporate Law and Securities Regulation, the http://cclsr.law.unimelb.edu.au/. University of Melbourne (Sydney and Melbourne); John Walker, Managing Director, IMF (Australia) Ltd (Sydney The Centre can be contacted by email at: and Melbourne) [email protected]. • Australian Auditing Standards – Imminent Changes (6 June 2006 Sydney, 7 June 2006 Melbourne) Speakers: Richard Mifsud, Principal Executive, Auditing and Assurance Standards Board; Lee White, Chief Accountant, Australian Securities and Investments Commission; Professor Ian Ramsay, Director, Centre for Corporate Law and Securities Regulation, the University of Melbourne. This seminar was co-hosted with the Auditing and Assurance Standards Board and Blake Dawson Waldron
Centres and Institutes 37 centres and institutes Centre for Media and Communications Law
Research in the Centre for Media and Communications This project aims to provide in-depth, independent analysis Law (CMCL) focuses on three activities – research of Australian regulatory options for protecting digital projects, research visitors, and research higher degree broadcast content, including technological and legal forms students. of protection, in a rapidly changing communications and In 2006 the Centre had five active research projects which policy environment. The objectives of the project include: are detailed below. The Research Visitor program brings • To comprehensively analyse the legal and regulatory leading academics and practitioners to the Law School to issues involved in protecting digital content transmitted pursue their research and facilitates collegiality between by free-to-air broadcasters; media and communications academics internationally. • To conduct empirical research, through the use of Research students are working across the full range of interviews of broadcast industry representatives, into topics in media and communications law, many including these issues; and an empirical element within their projects. • To make detailed recommendations regarding the Research Projects development of laws, regulations, technical standards and technologies to benefit Australian citizens, The Future of Television: Australian Legal Protection broadcasters and associated creative industries. of Digital Broadcast Content The Media and ASEAN Transitions: Defamation Law, ARC Discovery Project (2005–2008) Journalism and Public Debate in Indonesia, Malaysia The television broadcasting industry is undergoing and Singapore fundamental changes associated with the transition from analogue to digital transmission. This has serious ARC Discovery Project (2006–2009) implications for the Australian public interest in a diverse This project examines defamation law, journalism and broadcast environment that is accessible to all citizens, public debate in three core ASEAN member countries: and one which supports viable creative industries. Free- Indonesia, Malaysia and Singapore. It focuses on a legal to-air broadcasting is Australia’s most widely used mass issue, defamation, which is central to the Australian and media form and performs central economic, democratic regional media’s potential for improving public and private and cultural functions. However technological changes sector governance, and promoting domestic and regional now pose unprecedented challenges to broadcasters. understanding. In the context of political, economic, and Unlike analogue material, digital material can be copied and social transitions, media content is diversifying in ASEAN re-transmitted with no noticeable degradation in quality. countries and journalists and civil society groups appear The emergence of broadband internet and associated to be challenging defamation law’s limits on speech. The customer equipment, including personal video recorders, project combines legal research, media content analysis, creates the possibility of material broadcast ‘in the clear’ and qualitative interviews to analyse how defamation risks (meaning without any form of technological protection) are negotiated in print, broadcast and internet journalism in being copied and freely distributed. If digital broadcast each of the three countries, and how local, Australian and content is not protected, high value content may no longer international journalists and civil society organisations are be available to free-to-air broadcasters. The changes to mobilising a range of strategies to broaden media content broadcasters’ businesses may also threaten local content and promote public debate. production. However protection of broadcast content must take into account the interests of content producers and broadcasters in preventing unrestricted copying and redistribution as well as the interests of users in exercising freedom to copy and communicate digital content in innovative ways.
38 Faculty of Law Research Report 2006 centres and institutes Centre for Media and Communications Law
Cultural Collections, Creators and Copyright: In 2006 the CMCL was pleased to host fifteen research Museums, Galleries, Libraries and Archives and visitors: Australia’s Digital Heritage • Maria Aristodemou, Birkbeck School of Law, University ARC Linkage Project (2006–2009) of London This project investigates current and emerging ways of • Professor Graham Austin, J Byron McCormick Professor publicly using digital collections in museums, galleries, of Law, University of Arizona, James E Rogers College libraries and archives, in light of copyright law and the of Law interests of creators. The project will assist Australia • Professor Georgina Born, Faculty of Social and Political better manage its digital cultural collections in light of the Sciences, University of Cambridge interests of creators, institutions and public accessibility. Ten organisations are partners in the research: Arts Law • Stuart Brotman, Berkman Center, Harvard Law School Centre of Australia, Australian Centre for the Moving • Dermot Feenan, University of Ulster Image, Australian Film Commission, Museum Victoria, • Jonathan Griffiths, Queen Mary, University of London Museums Australia, National Gallery of Victoria, National Library of Australia, National Museum of Australia, • Dr Venkat Iyer, University of Ulster Powerhouse Museum and the State Library of Victoria. • Professor Matt Jackson, Penn State University Options for controlling cross-border tobacco • Professor Campbell McLachlan, Victoria University of advertising, promotion and sponsorship in light Wellington, New Zealand of the WHO Framework Convention on Tobacco • Gavin Phillipson, King’s College London Control (FCTC) • Professor Richard Sherwin, New York Law School Funded by VicHealth Centre for Tobacco Control (Cancer Council Victoria) and Cancer Research UK • Professor Rod Smolla, Richmond School of Law (2005–2006) • Tony Stern, Fremantle Media, UK This project combined comparative legislative and case- • Professor Jane Winn, Charles I Stone Professor of Law, study analysis across the fields of communications University of Washington School of Law and content regulation to assess legal, regulatory and • Dr Karen Yeung, St Anne’s College, Oxford University technological options for controlling cross-border tobacco advertising, promotion and sponsorship in a rapidly The CMCL is the editorial base for the Media & Arts Law changing communications and marketing environment. Review, a leading refereed journal in the field. A final report including recommendations was produced by the CMCL. Jonathan Liberman, Director of Law and Regulation, VicHealth Centre for Tobacco Control The Centre’s website can be accessed at: presented this report to a meeting of the relevant expert http://www.law.unimelb.edu.au/cmcl. committee of the FCTC during 2006. The research informing the ongoing development of guidelines under The Centre can be contacted by email at: the FCTC about cross-border advertising. [email protected]
Research Visitors’ Program Each year the CMCL hosts a number of visitors who come to Melbourne to work with the CMCL, either as teachers in the specialist postgraduate program, or as participants in the research visitors’ program. The Research Visitors’ program encourages research collaboration with leading Australian and international scholars. In many cases research visitors are participants in the CMCL’s public seminars, providing a further opportunity for interaction with Faculty staff and the broader community.
Centres and Institutes 39 centres and institutes Centre for Resources, Energy and Environmental Law
The Centre for Resources, Energy and Environmental Law Conferences/Seminars (CREEL) was established in 1986. Until 1996 it was known On 4–5 July 2006 the Centre hosted a conference titled as the Centre for Natural Resources Law, and the research ‘Trends toward individual title over communal lands: and teaching program was focused upon laws relating Implications for resource management and sustainability’. to mining, petroleum and water resources and the legal The conference was organized as part of the Discovery structure and financing of major resources projects. More Project ‘Managing Competing Claims to Land and recently, there has been a greater focus on environmental Resources – Is Property Law the Answer?’ currently law and policy, indigenous rights issues and dispute conducted by Lee Godden and Maureen Tehan. The resolution in the energy and resources area. following papers were presented at the conference: Purposes and Objectives • Wallace, J, ‘Overview of International Land Tenure Developments’. The purposes and objectives of CREEL are: • Pienaar, J, (University of Stellenbosch, South Africa), • To promote graduate teaching, research, publications ‘Communal or individual approach to land holding? The and discussion about legal, regulatory and policy Northern Cape Experience In South Africa resulting frameworks for – from the Transformation of Certain Rural Areas Act 94 of • the production and distribution of energy 1998’. • the provision of infrastructure • Boast, R, (University of Victoria at Wellington NZ) • the development of natural resources ‘Individualisation: An idea whose time came and went: lessons from New Zealand’. • protection of the environment • Stephenson, M, (University of Queensland) ‘Reforms • recognition of indigenous rights and interests in land to Indigenous Land Title in Australia: Lessons from and waters other Jurisdictions’. • dispute resolution in these areas; • Yapao, G, University of Papua New Guinea, ‘Issues in • To engage in these activities with respect to Customary Land-Holding in Papua New Guinea’. contemporary developments and issues in Australia, • Dick, D, (HREOC), ‘Human Rights and the Social Justice Asia/Pacific, and other selected regions; Dimensions of Land Tenure Reform’. • To extend the Law School's specialised collection of • Beard, J and Takagaki, T, (University of Melbourne/ research and teaching materials relating to energy, Productivity Commission), ‘The Costs and Benefits of natural resources, environmental law and native title; Individual Title over Native Title – A Preliminary Study’. • To strengthen existing links and establish new links • Bowen, P, ‘Spatial Representations and the National with other centres in Australia and overseas engaged in Native Title Tribunal’. equivalent activities (eg the Water Research Centre at the University of Melbourne); and • Kelly, C, ‘Considerations on the Impact of Individual Title on Communal Lands as a Social Health Determinant.’ • To encourage persons from industry, professions, investment institutions, government and universities • Tehan, M, ‘Amendments to the Aboriginal Land Rights in Australia and overseas to participate in the Centre's (Northern Territory) Act 1976 (C’th)’. activities. • Godden, L, ‘Property, Privatisation and Sustainability?’ Members Professor Richard Garnett, Associate Professor Lee Godden, Associate Professor Maureen Tehan, Dr Jackie Peel.
40 Faculty of Law Research Report 2006 centres and institutes Centre for Resources, Energy and Environmental Law
A book proposal for an edited collection based around The Centre’s website can be accessed at: the workshop was prepared and submitted to several http://creel.law.unimelb.edu.au/ publishers. The proposal has been provisionally accepted and is in final stages of review. The Centre can be contacted by email at: On 13 July 2006 the Centre hosted a seminar titled [email protected] ‘Development and agricultural revitalisation: the South African land reform perspective’ presented by Professor Juanita Pienaar, University of Stellenbosch, South Africa. On 18 October 2006 the Centre hosted a workshop on nuclear law at the offices of BHP Billiton, immediately prior to the 30th Annual Conference of AMPLA (the Australian Resources and Energy Law Association). The workshop was presented by Professor Carlton Stoiber, a former Counsellor for Nuclear Policy at the US Embassy in Vienna with responsibility for relations with the International Atomic Energy Agency. A commentary from an Australian perspective was provided by Mr Steven McIntosh, Senior Adviser at the Australian Nuclear Science and Technology Organisation.
Research Activities Two centre members, Lee Godden and Maureen Tehan, continue to carry out research under their Discovery Project in the fields of communal resources, water resources, property theory, resource management and indigenous heritage protection schemes. This research led to a number of publications in 2006 and will build toward further publications in 2007. Lee Godden and Jackie Peel are currently writing a major monograph to be published by Oxford University Press entitled Environmental Law: Scientific, Policy and Regulatory Dimensions. Jackie Peel also completed her doctoral thesis in the area of environmental law in 2006. Richard Garnett is presently undertaking research in the area of arbitration of energy and resources disputes, in particular under bilateral investment treaties, with a view to hosting a conference or seminars on the topic in 2007.
Centres and Institutes 41 centres and institutes Centre for Comparative and Constitutional Studies
The Centre for Comparative Constitutional Studies (CCCS), Research and Knowledge Transfer is a focal point for research, scholarship, teaching and Many Centre members were also heavily engaged information about Australian constitutional law and the in the implementation of the Victorian Charter of constitutional law of other countries whose systems are Human Rights, presenting lectures, conducting training most relevant to Australia. sessions and advising government. Centre members The objectives of the CCCS are: continued their work on other key topics in Australian and • To examine and evaluate the Australian constitutional comparative public law. Carolyn Evans wrote and lectured system and to contribute actively to the debate on the internationally about freedom of religion. Simon Evans Australian system of government; published an analysis of the political theories underlying the protection of property rights under the Australian • To examine and advise on the constitutional and legal constitution. Pip Nicholson wrote about developments framework for relations between levels of government, in the institutions of the modern Vietnamese state. Glenn in theory and practical operation; Patmore wrote about constitutional change, particularly • To introduce comparative constitutional concepts and republican change, in Australia and Canada. Founding knowledge about comparative constitutional practices Director Cheryl Saunders returned to Melbourne in late into the Australian constitutional debate; 2006 after visits to Université Pantheon Assas Paris II, • To develop and promote a sound understanding of the France and University of Copenhagen and after spending constitutional systems of countries in the neighbouring the 2005–2006 academic year as Arthur Goodhart Visiting region, both in underlying and practical operation; Professor of Legal Science, University of Cambridge. She lectured extensively on constitutional change, • To contribute to the debate on constitutional issues federalism and comparative constitutional law, among elsewhere in the world in the light of the experience of other topics. She has also been involved in assisting the Australia and the Asia-Pacific region; and Iraqi constitution-making process. Joo-Cheong Tham’s • To provide a public and specialist resource on research focused on two key issues in contemporary constitutional and comparative constitutional issues. Australian constitutionalism; ensuring that the response to terrorism accords with constitutional values and The Centre pursues these objectives through its activities- evaluating the funding of Australian political parties against research, teaching, information exchange, resource centre, democratic principles. Kristen Walker was active as consultancies and research. counsel in three major constitutional cases, the acting judges case (Forge) and the terrorism control orders case (Thomas) in the High Court, and the Catch the Fire Ministries case in the Victorian Court of Appeal. She also wrote a major work on same-sex marriage in Australia which is due for publication in 2007. John Waugh’s work in state constitutional law and history, particularly Victorian constitutional law and history, continues.
42 Faculty of Law Research Report 2006 centres and institutes Centre for Comparative and Constitutional Studies
Parliaments and the Protection Public Lectures of Human Rights • 18 May 2006 – ‘Victoria’s Racial and Religious Tolerance A major research focus of some Centre members Act 2001’, Dermot Feenan, University of Ulster, continued to be the ARC funded project on Australian Northern Ireland Parliaments and Human Rights (Chief Investigators in • 20 July 2006 – Miegunyah Public Lecture: ‘The Roles 2005 were Dr Simon Evans and Dr Carolyn Evans). This of Parliaments in Protecting Human Rights: A View project investigated all the existing parliamentary and pre- from the UK’, Professor David Feldman, University of parliamentary mechanisms for ensuring that proposed Cambridge, United Kingdom legislation is compliant with rights. In most jurisdictions these mechanisms include a parliamentary scrutiny Seminars and Roundtables committee with primary responsibility for checking • 29 May 2006 – ‘Equality and the Shape of Constitutions: legislation against (often vague) rights criteria. The Perspectives on Legislative Rights from Canada and the project combines a review of the parliamentary records US’, Professor Benjamin Berger, University of Victoria, of selected Australian parliaments with interviews of key Canada parliamentary stakeholders. It aims to identify the capacity and effectiveness of Australian parliaments and, through • 8 August 2006 – ‘A Sceptical Canadian Perspective a comparative study, to compare their performance with on Charters of Rights’, Professor Grant Huscroft, world’s best practice. University of Western Ontario As part of the project, the Centre hosted a major • 16 August 2006 – ‘Constitutions and Nation- international conference in July 2006. The conference (re)building’, Professor David Feldman, University of was designed to encourage exploration of the role and Cambridge and Miegunyah Distinguished Visiting Fellow effectiveness of legislatures in protecting human rights. • 22 August 2006 – ‘Anti-Terrorism and Migration Until recently, academic and public attention had focussed Detention in Canada: The Supreme Court Charter mainly on the contribution of courts to the protection of of Rights Challenge’, Mr Rayner Thwaites, human rights through the enforcement of bills of rights. University of Toronto This conference built on the growing awareness of the • 30 August 2006 – ‘The Failure of Criminal Racial significant role of legislatures in protecting human rights. Vilification Laws in Australia’, Mr Dan Meagher, Papers presented at the conference discussed the Deakin University impact of Bills of Rights on parliamentary procedures, the contribution of legislative actors and processes (for • 12 September 2006 – ‘Can Constitutional Courts example: the executive, political parties, parliamentary Solve Serious Social Problems? Segregation, Abortion committees, debate in the chamber) to effective scrutiny and Access to Housing’, Roundtable Discussion, of legislation, the conditions in which effective legislative Professor Geoffrey Lindell, Professorial Fellow, scrutiny can take place, pre-legislative mechanisms for Melbourne Law School rights-scrutiny, and developing a human rights culture • 14 September 2006 – ‘The Coalition Invasion of Iraq: in the public service. More than 200 people attended The Recognition and Enforcement of International Law the conference and the Miegunyah Lecture presented and the Courts of the UK and Ireland- Significance by Professor David Feldman ( University of Cambridge, for Australia’, Professor Geoffrey Lindell, Professorial and former legal adviser to the UK Parliament’s Joint Fellow, Melbourne Law School Committee on Human Rights). Other featured speakers • 14 September 2006 – ‘Education, the Australian included Professor Janet Hiebert (Queen’s University, Constitution and the Commonwealth–He Who Pays Kingston Ontario), Professor George Williams (Director, the Piper, Calls the Tune’, Professor Geoffrey Lindell, Gilbert+Tobin Centre of Public Law, UNSW), Hafid Abbas Professorial Fellow, Melbourne Law School (Director General of Human Rights Protection, Department of Justice and Human Rights, Indonesia), Professor Jeremy • 8 November 2006 – ‘Transnationalism and Common Gunn (Director, Program on Freedom of Religion and Belief, Law Constitutionalism’, Professor Vicki Jackson, American Civil Liberties Union, Washington DC and Senior Georgetown University Centre of Law, Washington DC Fellow, Emory University, Georgia) and Professor Paul Rishworth (Faculty of Law, University of Auckland).
Centres and Institutes 43 centres and institutes Centre for Comparative and Constitutional Studies
• 28 November 2006 – ‘Hong Kong’s Political Autonomy Management and its Continuing Struggle with Universal Suffrage’, Mr Director: Dr Simon Evans Phil C W Chan, Visiting Fellow, Asia-Pacific College of Diplomacy, ANU Deputy Directors: Associate Professor Kristen Walker and Dr Carolyn Evans • 5 December 2006 – ‘The High Court’s Work Choices Decision: Analysis and Implications for Employment Law Founding Director: Professor Cheryl Saunders AO and Constitutional Law’ (organised with the Centre for Administrator: Ms Emma Brimfield Employment and Labour Relations Law), Justin Bourke (Barrister), Rosemary Owens (Adelaide University) and Professor Cheryl Saunders AO (Founding Director of the The Centre’s website can be accessed at: Centre for Comparative Constitutional Studies) http://cccs.law.unimelb.edu.au The Centre can be contacted by email at: Visitors to the Centre [email protected] Ms Christine Bateup, former Hauser Scholar, New York University, 23 August–25 September 2006, 10 October–14 November 2006 Dr Gregory Carne, University of Tasmania, 2 January–10 February 2006 Professor David Feldman, University of Cambridge and Distinguished Miegunyah Visiting Fellow, 20 July–28 August 2006 Professor Grant Huscroft, University of Western Ontario, 6 August–9 August 2006 Dr Amos Jones, Fulbright Postgraduate Award holder, Harvard Law School, 1 September 2006–31 May 2007 Professor Geoffrey Lindell, 12–15 September 2006 Mr Dan Meagher, Deakin University, 17 July–31 December 2006 Mr Charles Parkinson, 23 January–1 September 2006 Dr Gregory Taylor, Monash University, 1 January–30 June 2006 Mr Rayner Thwaites, University of Toronto, 23 January–1 September 2006
44 Faculty of Law Research Report 2006 centres and institutes Centre for the Study of Contemporary Islam
The Centre for the Study of Contemporary Islam (CSCI) 2006 Publications is a joint centre located in both the Faculty of Law and Selected publications by Centre members in 2006 include: the Faculty of Arts (Asia Institute) at the University of Melbourne. • Kamal, M, Sadra’s Transcendent Philosophy, Ashgate (2006) Given global events over the last few years, Islam and Islamic studies have received increased attention. The • Kamal, M, Nietzsche and Postmodernism, Sardam Centre aims to facilitate and support Islam-related research Publishing House, Sulaimani (2006) and education projects across the University, particularly • Saeed, A, Interpreting the Quran: Towards a those related to contemporary Islamic thought. It also aims Contemporary Approach, Routledge, London (2006) to improve Australian understandings of Islam, both within • Saeed, A, Islamic Thought: An Introduction, Routledge, the University and throughout the wider community. London (2006) Aims • Gully, A, ‘Two of a kind?: Ibn Hišam al-Ansari on nahw and Ibn al-Atir on balaga’, Grammar as a Window onto The specific aims of the CSCI include: Arabic Humanism. A collection of articles in honour • To create a global centre of excellence in Islamic studies of Michael G Carter, Harrassowitz Verlag, Wiesbaden at the University of Melbourne; (2006) • To promote interdisciplinary approaches to • Lindsey, T, ‘From Soepomo to Prabowo: Law, Violence contemporary Islamic thought at the University of and Corruption in the Preman State’ in C Coppel (ed), Melbourne, with particular focus on areas such as law, Violent Conflicts in Indonesia: Analysis, Representation, human rights, pluralism, Islam in the West, interreligious Resolution, Routledge, London (2006) 19–36 relations and causes of and responses to militant Islam; • Saeed, A, ‘Contextualising’, in A Rippin (ed), • To coordinate the procurement and efficient utilization The Blackwell Companion to the Qur’an, Blackwell of resources and infrastructure for the study of Publishers, Oxford (2006) contemporary Islamic thought at the University of • Saeed, A, ‘Muslims in Australia’ in F Mansouri (ed), Melbourne; Australia and the Middle East: A Front Line Relationship, • To attract researchers/specialists in the study of Tauris Academic Studies, London (2006) contemporary Islamic thought of the highest calibre to • Harijanti, S and Lindsey, T, ‘Indonesia: General the University of Melbourne; Elections Test the Amended Constitution and the New • To function as a think-tank for issues related to Islam Constitutional Court’ (2006) 4 International Journal of and Muslim societies; and Constitutional Law 138–150 • To offer short courses and training to enhance • Kamal, M, ‘Dasein and Creativity: A New Reading of community understandings of Islam, Islamic thought Heidegger’ (2006) 33 Indian Philosophical Quarterly and Muslim societies, both on ex gratia and commercial 243–254 bases. • Kamal, M, ‘The Self and the Other in Sufi Thought’ Research Projects (2006) 1 Religion East and West 21–32 The CSCI is associated with three major research projects: • Lindsey, T, ‘Tribute–Australia’s Asian Law Pioneer: Professor Malcolm D H Smith, 21 August 1945–22 June • ARC Federation Fellowship: ‘Islam and Modernity: 2006’ (2006) 30 Melbourne University Law Review Syari’ah, Terrorism and Governance in South-East Asia’ 297–299 (2006–2011) • Saeed, A, ‘Muslims in the West Choose Between • ARC Discovery Project: ‘Islamic Law in Contemporary Isolationism and Participation’ (2006) 16 Sang Saeng Malaysia, Singapore and Brunei: The Anglo-Malay 8–11 Madhhab’ (2005–2007) • ARC Discovery Project: ‘Reconfiguration of Islam among Muslims in Australia’ (2004–2006)
Centres and Institutes 45 centres and institutes Centre for the Study of Contemporary Islam
Briefing Paper Series • ALC/CSCI Seminar: ‘Wajah Undang-undang Perkawinan The CSCI publishes the CSCI Islamic Issues Briefing Paper di Indonesia: Studi Terhadap Perceraian di Bawah Tangan series, which is available in hard copy and on the CSCI Masyarakat Melayu’ [Indonesia's Marriage Law: A Study website. of Unregistered Divorce Among Ethnic Malays] (Bahasa Indonesia), Ms Fatimah Zuhrah Recent and forthcoming papers include: (6 June, 2006) • ‘Islam in Southeast Asia: Tolerance and Radicalism’, by • ALC/CSCI Seminar: ‘Hukum Islam dalam Konfigurasi Professor Azyumardi Azra (2006) Politik: Studi terhadap Syariat Islam dalam Bidang • ‘Iran, Islam and Democracy’, by Professor Haleh Afshar Hukum Keluarga di Indonesia pada Masa Orde Baru’ (2006) [Islamic Law in Political Configuration: A Study of Islamic Syariat in the Field of Family Law in New Order • ‘Listening to the Qur’an: A Search for Understanding’, by Indonesia] (Bahasa Indonesia), Mr Bani Syarif Maula Professor Anthony Johns (forthcoming) (6 June, 2006) Seminars • ‘Divorce in Islamic Law: Classical and Contemporary Perspectives’, Ms Anisa Buckley (26 July, 2006) The Melbourne Public Dialogues on Islam The Melbourne Public Dialogues on Islam cover • ‘Judaism, Christianity and Islam: Confrontation or issues relating to Islam and are relevant to academics, Cooperation?’, Imam Yahya Hendi (2 August, 2006) governmental and business organisations, as well as the • ALC/CSCI Panel: ‘Islamic Syari’ah Codes in Indonesia’, community. Professor Tim Lindsey, Mr Andi Amiruddin and Mr • ‘Iran, Islam and Democracy’ (with the Department of Jeremy Kingsley (14 August, 2006) History), Professor Haleh Afshar • ALC/CSCI Seminar: ‘Jemaah Islamiyah, Al Qaeda and (22 March, 2006) Regional Terrorism: Kinship and Family Links’, Mr Noor • ‘Listening to the Qur’an: A Search for Understanding’, Huda Ismail (8 November, 2006) Professor Anthony Johns (24 May, 2006) Conferences The CSCI hosts an annual conference on current issues • ‘Islam and the Transformation of Science’ (with the relating to Islam, with the objective of producing edited Department of History and Philosophy of Science), books and other publications. It also hosts an annual Professor George Saliba (16 August, 2006) national postgraduate conference on Islamic Studies, Islam Research Seminar Series which is open to students from throughout Australia. The CSCI Islam Research Seminar Series are lunchtime The 2006 Colloquium, held on 22–23 November, 2006, seminars that are more informal and are often presented was titled ‘Muslims in the West: Integration or Exclusion’. by postgraduate students. The Islamic Studies Postgraduate Conference was held on • ‘Banking on Identity: Muslims in the West and Bank 20–22 November, 2006. Selection Criteria’, Mr Imran Lum (11 May, 2006) • ‘Islam in Southern Thailand: The Role of Islamic Education’, Mr Phaisan Toryib, Dr Niloh Wae-u-Seng and Mrs Lamaismart Prachwuttikul (15 May, 2006) • ‘Islam and Modernity in Indonesia: An Open Discussion’, Professor Nasaruddin Umar (23 May, 2006)
46 Faculty of Law Research Report 2006 centres and institutes Centre for the Study of Contemporary Islam
Visitor Programs Staff Thailand Leadership Program The Co-Directors of the Centre are Professor Abdullah This program is funded by the Australia-Thailand Institute Saeed, the Sultan of Oman Professor of Arab and Islamic (of the Department of Foreign Affairs and Trade) and is Studies and Director of the Asia Institute, and Professor managed by the Centre for the Study of Contemporary Tim Lindsey, ARC Federation Fellow and Director of the Islam. The project aims to recruit three young Muslim Asian Law Centre in the Faculty of Law. leaders from southern Thailand, who are involved in the Ms Kathryn Taylor is the Manager of the Centre and administration of Muslim educational institutions (one of Ms Kelly McDermott is the Administrative Assistant. whom will be from the Ministry of Education in Bangkok) and to bring them to Australia for a period of two weeks in The Centre’s website can be accessed at order to familiarise them with the Australian administration http://www.csci.unimelb.edu.au. of educational institutions and curricula (with particular focus on high schools). The program contributes towards The Centre can be contacted by email at : improving the quality of Islamic education institutions in [email protected]. southern Thailand. Short Courses The CSCI offers short courses to government, business and the community to build public understandings of Islam.
Centres and Institutes 47 centres and institutes Intellectual Property Research Institute of Australia
Established in 2001, the Intellectual Property Research • Uncertain Intellectual Property Rights and Start-Up Institute of Australia (IPRIA) is one of the world’s few, and Commercialisation Strategy Australia’s only, multidisciplinary research organisation • The Effect of Interorganizational Personnel Flow on Firm specialising in research on the law, economics and Performance: An Examination of IP Lawyer Movement management of intellectual property. The institute is based at the University of Melbourne, comprising directors and • Patent Attorney Professional Privilege staff from the Faculty of Law, the Faculty of Economics • Australian Developments in IP and Commerce, and the Melbourne Business School. • International Developments in IP IPRIA aims to produce world-class information and • Law Reform analysis on the operation and impact of intellectual property (IP) systems. IPRIA’s activities aim to: • Copyright and Cultural Institutions: Digitising Collections in Public Museums, Galleries and Libraries • Support and generate development of high-level public policy in relation to intellectual property issues; • The Evolution of Australian Enterprises: 1990 to 2007 • Improve the protection, management and exploitation • Ownership of, Access to and Control of Cultural of intellectual property by all Australian stakeholders, Property held in Cultural Institutions including research institutions, public and private sector interests; and Seminars • Help create an informed environment for, and contribute • 28 November 2006, (Melbourne), 29 November 2006 to, ongoing public debate in Australia about intellectual (Sydney), 1 December 2006 (Melbourne), Disharmony in property issues and related matters, including innovation a harmonised system: What Drives Different Outcomes policy and economic growth. at the World’s Patent Offices? Dr Alfons Palangkaraya, Research Fellow, IPRIA Research Projects undertaken • 31 October 2006, Can Australia’s Biotechnology by IPRIA Staff Industry Survive? Professor Ian Cockburn, Professor of • The Role of IP Protection and its Use in Encouraging Finance and Economics & Everett W Lord Distinguished Innovation, Competition and Commercialisation Faculty Scholar, Boston University School of Management • Quality of Patent Examination • October 2006, The Copyright Amendment Bill 2006: • Comparison of Quality of International Patent The Scope and Likely Impact of New Library Exceptions, Examinations Using Matched Applications Emily Hudson, Research Fellow, IPRIA • National Innovative Capacity • 11 August 2006, Intellectual Property and Innovation: A • Research & Development Property Scoreboard Different Perspective, Professor David Levine, Professor of Economics, Washington University in St Louis and • Level of Disharmony between Quad-Lateral Offices Professor Eric von Hippel, Professor and Head of • Outcomes of IP Enforcement Actions in Australia Innovation and Entrepreneurship Group, MIT Sloan • IP Policies and the FTA with China School of Management • Patent Litigation and the Settlement of Patent • 18 July 2006, IP Commercialisation Ventures: One- day Taxation Course in association with the School • Patent System Balance of Enterprise, Professor Cameron Rider, Professor of • History of Australian Patent Policy Taxation Law, University of Melbourne • Knowledge Bridging by Biotechnology Start-Ups • 12 July 2006, (Melbourne), 13 July (Sydney), Centenary • Employees’ Rights to IP of Trademarking, Dr Paul Jensen, Research Fellow, IPRIA • The Impact of Product Modularity on Intellectual • 28 June 2006, Intellectual Property in Global Property Creation Perspective, Professor Suzanne Scotchmer, University of California, Berkeley
48 Faculty of Law Research Report 2006 centres and institutes Intellectual Property Research Institute of Australia
• 19 June 2006, Law, Ethics and Indigenous Collections: Significant Publications A Workshop for Cultural Institutions, Nerissa Broben, Koorie Heritage Trust; Caroline Carmody, AIATSIS; Books Professor Andrew Christie, IPRIA; Jason Eades, Koorie • Bosworth, D and Webster, E (eds), The Management of Heritage Trust; Di Hosking, AIATSIS; Emily Hudson, Intellectual Property, Edward Elgar, Cheltenham (2006) IPRIA; Elizabeth McNiven, National Film and Sound Reports Archive; Mary Miliano, National Film and Sound Archive; • Rider, C, Hong, L, O’Connell, A, Stewart, M and Herring, Moira Paterson, Monash University; Dianne Reilly, State M, Taxation Problems in the Commercialisation of Library of Victoria; Kimberlee Weatherall, IPRIA Intellectual Property (2006) • 26 April 2006, Turning Intellectual Property into • Hudson, E and Kenyon, A, Copyright and Cultural Commercial Reality: University Showcase Innovation, Institutions: Guidelines for Digitisation (2006) David Bradley, Victorian AgriBioscience Centre; Duncan Bucknell, Research Associate, IPRIA; Julian Curwen, • Hudson, E, Cultural Institutions, Law and Indigenous Davies Collison Cave; Professor Barrie Finnin, Monash Knowledge: A Legal Primer on the Management of University; Igor Gonda, Akrux Pty Ltd; Dr Benjamin Australian Indigenous Collections (2006) Palmer, Genos Pty Ltd; Peter Willimot, IP Australia • Gans, J and Hayes, R, Assessing Australia’s Innovative • 7 February 2006 (Brisbane), 8 February 2006 (Sydney), Capacity – 2005 Update (2006) 9 February, (Canberra), 16 February (Melbourne), Taxing the Mind, Professor Cameron Rider, Professor of The Centre’s website can be accessed at: Taxation Law, University of Melbourne http://www.ipria.org. • 2 February 2006, Venture Capital Symposium: Tax and Expenditure Sybsidies for Commercialisation Innovation, Stephen Barkoczy, Monash University; Ben Davey, Freehills; Craig Moore, Starfish Ventures Pty Ltd; Professor Daniel Sandler, University of Western Ontario; Miranda Stewart, University of Melbourne
Centres and Institutes 49 centres and institutes Institute for International Law and Humanities
The Institute for International Law and the Humanities IILAH focuses on encouraging the work of younger (IILAH) is dedicated to integrating the study of international scholars and those developing new approaches to the law with contemporary approaches to the humanities. field of international law, and on facilitating engagement It facilitates and promotes innovative scholarship and between scholars and the community of professionals critical thinking on emerging questions of international and activists working on issues of international law and law, governance and justice, and strengthens the role of governance in Australia and the Asia-Pacific region. IILAH Melbourne Law School as a leading centre of research in seeks to develop networks with scholars in international this area. The Director of IILAH is Professor Anne Orford. law and the humanities from the global South, to explore the ways in which international law has arrived and been Aims and Objectives received. It will also focus on developing links with scholars The modern discipline of international law has been a in the United Kingdom and in former British colonies such productive site for the exploration of concepts which as Canada, India, New Zealand and Sri Lanka, in order have also absorbed the humanities — sovereignty, to explore the shared legacies of British colonialism with jurisdiction, force, universality, territory, asylum, peace, respect to international law and governance. non-discrimination, equality, development, imperialism, human rights, security and states of emergency. Many of Research Activities the significant modes of thought which have framed the IILAH hosted a wide range of events in 2006. way in which international lawyers understand the world have developed in conversation with the humanities. IILAH Public Lectures continues this engagement, through fostering dialogue In April, Professor Costas Douzinas (Birkbeck College, with scholars working in disciplines such as anthropology, London) presented a public lecture entitled The Normative art, cultural studies, geography, history, linguistics, Foundations of Empire. By examining recent developments literature, philosophy, politics and theology. in international law, war, human rights, humanitarianism, political justice, and the spatial, temporal and linguistic IILAH’s research activities are structured around eight understandings of our world, Professor Douzinas began Research Programmes, each led by Programme Directors addressing the questions; What are the common based in the Faculty of Law: normative characteristics of the new world order? • History and Theory of International Law Can we define it as a new empire? (Professor Anne Orford); In November, the 2006 Sir Kenneth Bailey Memorial • International Economic Law (Mr Jürgen Kurtz); Lecture was delivered by Professor Martti Koskenniemi • International Environmental Law (Academy Professor of International Law at the University (Ms Jacqueline Peel); of Helsinki, Global Professor of Law at New York University). Miserable Comforters? International Law as a • International Human Rights Law New Natural Law compared two moments of international (Associate Professor Dianne Otto); transformation in which legal vocabularies clashed. • International Refugee Law (Dr Michelle Foster); Professor Koskenniemi argued that the situation facing • Law and Development (Dr Jennifer Beard and international lawyers today resembles an earlier moment Associate Professor Sundhya Pahuja); of transformation – the end of the Thirty Years’ War and the emergence of a secular natural law to govern thinking • Security and the Limits of International Law about international reform towards the end of the 17th, and (Professor Anne Orford); and early 18th, century. Then, as now, lawyers were urged to • Theories of Sovereignty and Jurisdiction abandon anachronistic scholasticism, and legal renewal (Associate Professor Peter Rush). was proposed as a project for grasping the inherent laws of human nature and society. It was this proposal that Immanuel Kant rejected in his attack on the natural lawyers as ‘miserable comforters’. In his lecture, Professor Koskenniemi turned this Kantian indictment against the novel legal vocabularies of international power expressed in the suave idioms of globalization and military necessity.
50 Faculty of Law Research Report 2006 centres and institutes Institute for International Law and Humanities
Public Seminars humanities to attempt to generate a better understanding In February, IILAH, together with Melbourne University’s of the stakes of this pervasive contemporary anxiety Melbourne School of Continental Philosophy, Ashworth about law at the limit. Speakers included: Professor Hilary Centre for Social Theory and Institute for Postcolonial Charlesworth (Law, ANU); Professor Costas Douzinas Studies and Deakin University’s Psychoanalytic Studies (Arts, Birkbeck); Professor Hassan El Menyawi (Law, program, ran the second of the Terror Seminar Series, UN University for Peace, Costa Rica); Professor Martti The Enemy Within. The forum discussed aspects of the Koskenniemi (Law, Helsinki and NYU); Mr Shaun McVeigh sedition provisions contained in anti-terrorism legislation. (Law, Griffith); Dr Naz Modirzadeh (Humanitarian Policy The discussion was facilitated by Peter Rush and Juliet and Conflict Research, Harvard); Professor Gregor Noll Rogers. IILAH also co-hosted a workshop on Responding (Law, Lund University, Sweden); Professor Anne Orford to the Anti-Terrorism Legislation, organised in conjunction (Law, University of Melbourne); Dr Sanjay Seth (Politics, with the Victorian Equal Opportunity Commission and the La Trobe); Professor RBJ Walker (International Relations, Federation of Community Legal Centres. Presentations Keele), and Professor Kath Weston (Visiting Scholar, by John Von Doussa, President of the Human Rights Anthropology, MIT). and Equal Opportunity Commission, and Marika Dias, In December IILAH hosted a British Academy Federation of Community Legal Centres were followed by Collaborative Workshop, Popular Sovereignty and the Rule group discussion facilitated by Joo-Cheong Tham. of Law in Divided Societies, convened by Dr. Andrew In March IILAH hosted a public seminar (also supported by Schaap (Politics, Melbourne). The workshop examined the University of Melbourne School of Population Health critically the ways in which the principles of popular and the Victoria Health Promotion Foundation) on the Right sovereignty and rule of law articulate in the context of to Health of Indigenous Australians. The seminar brought divided societies to variably facilitate, underwrite and together experts in health and human rights to examine frustrate political processes. Speakers included: Dr Emilios pressing health issues facing indigenous Australians. Christodoulidis (Law, Glasgow); Assistant Professor Jason Speakers included Mr Tom Calma (Aboriginal and Torres Frank (Politics, Cornell); Professor Bonnie Honig (Politics, Strait Islander Social Justice Commissioner, Human Northwestern); Dr Fiona Jenkins (Philosophy, ANU); Dr Rights and Equal Opportunity Commission); Professor Ian Paul Muldoon (Politics, Monash); Professor Paul Patton Anderson (Director, Onemda VicHealth Koori Health Unit, (Philosophy, UNSW), and Dr Scott Veitch (Law, Glasgow). University of Melbourne), and Dr Papaarangi Reid (Director, Maori Health Centre, Wellington School of Medicine). Research Seminars In March, Ms Tracey Epps (University of Toronto) Workshops and Symposia presented aspects of her doctoral research on The Role In April, IILAH hosted a two-day symposium, Declarations of Science and Public Sentiment in Regulatory Decisions of Law, convened by Peter Rush and Juliet Rogers. The regarding Health under WTO Law. symposium considered aspects of counter-terrorism, In April, Melbourne barrister Ms Georgina Costello the condition of the exception and sovereign jurisdiction. presented a seminar on Human Trafficking: Approaches Speakers were Dr Catherine Mills (Philosophy, University to Justice for Human Trafficking Victims in Australia. of NSW); Mr Shaun McVeigh (Law, Griffith University), and The seminar, co-hosted with the Asia-Pacific Centre for Associate Professor Joseph Pugliese (Critical and Cultural Military Law, considered Australia’s approach to issues Studies, Macquarie University). surrounding trafficking such as; human rights abuses, The 3rd Melbourne Legal Theory Workshop was held organised crime, labour exploitation, gender harm, poverty from 22–24 November. The workshop on the theme of and development issues, and border control. Limit, Exception, Emergency, Miracle, was convened In May, Professor Campbell McLachlan (Victoria University by IILAH’s director Professor Anne Orford. It explored of Wellington Law School), presented a seminar on the ways in which a range of disciplines (including law, Fragmentation and the Sleeping Beauty of Systemic philosophy, political theory, international relations and Integration. Professor McLachlan presented aspects of his anthropology) have understood the possibility, necessity work on the recently released report of the International or dangers of the moment at which authority produces Law Commission’s Study Group on Fragmentation of itself through the suspension of law or tradition. The International Law. workshop brought together scholars from law and the
Centres and Institutes 51 centres and institutes Institute for International Law and Humanities
In August, Justice Kenneth Keith QC KBE presented a The Institute’s website can be accessed at: seminar on The International Court of Justice: A View from http://iilah.unimelb.edu.au/. the Inside. Sir Kenneth discussed aspects of his work as a Judge of the International Court of Justice. The Institute can be contacted by email at: In September, IILAH hosted a seminar, Trends and [email protected]. Challenges in Accountability Mechanisms of Multilateral Development Banks with Mr. Suresh Nanwani, Associate Secretary of the Compliance Review Panel at the Asian Development Bank. Mr. Nanwani explored the use by multilateral development banks of accountability mechanisms allowing NGOs and community groups affected by particular projects to seek review of the bank’s compliance with its own internal policies and procedures. In early November, IILAH hosted a seminar, Competitive Adjudication? Dispute Settlement in FTAs and the WTO. Mr Joshua Meltzer (negotiator for the Australia-Malaysia FTA and ASEAN-Australia-New Zealand FTA) examined issues associated with the various dispute settlement mechanisms available under World Trade Organization agreements and bilateral free trade agreements (FTAs).
Roundtables In May, IILAH hosted a roundtable discussion with Professor Paul Hunt (UN Special Rapporteur on the Right to Health). The Roundtable focussed on how international human rights work and avenues for petition and complaint might be utilised towards improving the health of Aborigines and Torres Strait Islanders. In August, IILAH hosted a roundtable discussion with Miloon Kothari (UN Special Rapporteur on the Right to Adequate Housing). The discussion drew on Mr. Kothari’s expertise in order to focus on contributing to the housing and land crisis globally, as well as on housing policy and problems in the Australian context.
52 Faculty of Law Research Report 2006 centres and institutes The Tax Group
About the Tax Group IMF on tax reform in developed countries which is funded The Tax Group at Melbourne Law School aims for by a Melbourne University Early Career Researcher Grant. excellence in tax education and research. It offers a comprehensive postgraduate program and teaches a Significant publications and presentations range of subjects in the LLB and JD degrees. The tax by Tax Group faculty program is designed and taught by, and in conjunction Dr Michael Kobetsky, Associate Professor Ann O’Connell with, experienced taxation practitioners including and Associate Professor Miranda Stewart published a 6th members of leading law and accounting firms and leading edition of Income Tax: Text, Materials and Essential Cases members of the Tax Bar. The program provides detailed (2006), with Professor Rick Krever of Monash University. taxation knowledge and skills for tax professionals and They also wrote the chapter on ‘Australia’ in the IBFD policy-makers and seeks to develop the foundations of loose-leaf service, Investment Funds: International Guide tax policy and law for research students. to the Taxation and Regulation of Mutual Investment In 2006, Professor Cameron Rider returned to practice Funds and their Investors, International Bureau of Fiscal at leading law firm Allens Arthur Robinson, although Documentation (2006) in P Bongaarts, D Bouzoraa, D he continues his involvement in teaching and research Maisto and G Pelvang (eds). with the Tax Group as a Professorial Fellow. Associate Associate Professor Miranda Stewart edited a book Tax Professors Ann O’Connell and Miranda Stewart have Law and Political Institutions, featuring contributions taken over as co-directors of the Tax Group. from members of law, politics and commerce faculties in Australia, New Zealand, Canada and Hong Kong. She also Research in the Tax Group presented papers on aspects of Australian business tax The Tax Group undertakes research with a technical, reform at two conferences organised by the Australian Tax public policy and reform focus and contributes at various Research Foundation and on tax reform and governance levels to public debate on tax reform. The tax faculty has at the first OECD International Network for Tax Research a diverse range of tax research interests, including conference, at the University of Michigan Law School in Australian individual and corporate income tax, tax policy the United States. and reform, with a strong emphasis on comparative and Lecturer Sunita Jogarajan presented a paper on ‘Tax international taxation. Concessions for Returning Australians’ at the ATTA In 2006, Professor Cameron Rider and Associate conference which was later published as a refereed article Professor Ann O’Connell continued work with Professor in the Revenue Law Journal. Lecturer Sunita Jogarajan Richard Mitchell of the Centre for Employment and Labour also co-wrote a paper on ‘The Australian Investor in India Relations Law and Professor Ian Ramsay of the Centre – Business Structures, Tax and Investment Scenarios’ for Corporate Law and Securities Regulation on a three for the inaugural CPA Australia India Conference and year ARC-funded research project, ‘Employee Share published an article on the Indian tax system and foreign Ownership: Current Practice and Regulatory Reform’. direct investment in the Asia-Pacific Journal of Taxation. Lecturer Sunita Jogarajan also co-authored a report on The Tax Group also continued their research into tax and ‘ASEAN Tax Regimes and the Integration of Priority intellectual property funded by the Intellectual Property Sectors’ which was funded by the ASEAN Australia Research Institute of Australia (IPRIA). In 2006, Professor Development Cooperation Program. Cameron Rider, Associate Professor Ann O’Connell, Associate Professor Miranda Stewart, Lillian Hong and Dr Michael Kobetsky gave a number of presentations in Michelle Herring produced a substantial report titled mainland China, including seminars for the Chinese central ‘Taxation Problems in the Commercialisation of Intellectual revenue authority on international tax anti-avoidance Property’. Professor Cameron Rider presented this measures. In Taiwan, Dr Michael Kobetsky gave a keynote research in a series of lectures hosted by IPRIA throughout address on transfer pricing to Chinese Taipei tax officials Australia, titled ‘Taxing the Mind’. This has now been and tax advisers and presented an international tax developed into a postgraduate tax subject. seminar to the Study Group of Asian Tax Administrations and Research hosted by Chinese Taipei. In addition, In addition, the Tax Group continued to conduct research Dr Michael Kobetsky presented a paper at the Taxpayers on tax reform processes. Lecturer Sunita Jogarajan Australia National Conference on the tax consequences of commenced a research project into the influence of the investing overseas.
Centres and Institutes 53 centres and institutes The Tax Group
Contributions to public policy and The Tax Group also hosted with IPRIA a Venture Capital dissemination of research Symposium in February 2006 attended by members of the profession, venture capital business and federal Members of the Tax Group participate in peak government bodies. Associate Professor Miranda professional and policy bodies in which they play a Stewart spoke at the symposium, together with Professor key role in development of tax law and policy. In 2006, Daniel Sandler, of the University of Western Ontario, several members of the Tax Group were fellows of the Canada; Associate Professor Stephen Barkoczy from Taxation Institute of Australia and active members of Monash University; Ben Davey, Partner at Freehills the International Fiscal Association. Professor Cameron Lawyers and Craig Moore of the Australian Venture Rider was a member of the Taxation Committee of Capital Association Ltd. the Law Council of Australia. Associate Professor Ann O’Connell was a member of the Advisory Panel to the The Tax Group also hosted two branch meetings of the Board of Taxation, the peak federal government body International Fiscal Association (IFA) in 2006. In September concerned with taxation reform, and sat on the Education, 2006, a presentation was given at the IFA branch Examinations and Quality Assurance Board of the Taxation meeting by Graham Whyte, Assistant Commissioner Institute of Australia. In relation to broader policy issues, (International Relations) at the ATO, addressing Australia’s Associate Professor Miranda Stewart made written new international tax treaties on exchange of information and invited oral submissions to the HREOC inquiry into with tax havens. In November 2006, Professor Tim Edgar discrimination against same-sex couples in federal law. from the University of Western Ontario, spoke about the Canadian general tax anti-avoidance rule. Tax group events and visitors The Tax Group hosted the 18th Annual Australasian Tax The Tax Group’s website can be accessed at: Teachers Association Conference in 2006. On the theme http://www.tax.law.unimelb.edu.au/ ‘Old Taxes in a New World’, the conference featured, as keynote speakers, Justice Richard Edmonds of the Federal Court, Professor Neil Brooks of Osgoode Hall Law School, Toronto, Professor Malcolm Gammie QC of London School of Economics, Mr Michael D’Ascenzo, incoming Commissioner of Taxation, Professor Judith Freedman of Oxford University, and Professor Claire Young of UBC, Vancouver. This conference was attended by more than 100 tax faculty from around Australia and New Zealand. In October 2006, the second Annual Tax Lecture took place at the Melbourne Law School, continuing a series which aims to place the tax law in its historical context, and to inform public debate on current tax issues. Justice Neil Young of the Federal Court, gave a lecture titled ‘The Historical Significance of the High Court’s Decision in Federal Commissioner of Taxation v Myer Emporium’, which is to be published in the Melbourne University Law Review.
54 Faculty of Law Research Report 2006 academic research profiles
Academic Research Profiles 55 academic research profiles Simon Evans
Simon Evans came to Melbourne Law School in 1999 from private practice in Sydney. He had previously completed a PhD at the University of Cambridge as a W M Tapp Student and holder of the Ivan Roberts Scholarship and had been associate to Chief Justice Sir Anthony Mason in 1992–1993. He completed his undergraduate degrees in Science (honours in Pure Mathematics) and Law at the University of Sydney and was awarded University Medal for both degrees. He served as the Faculty’s Director of Teaching from 2003 to 2005 and is currently Director of the Faculty’s Centre for Comparative Constitutional Studies. Simon’s research focuses mostly on public law – constitutional law, administrative law and human rights – but he also occasionally publishes in private law, most recently an essay on the High Court’s equity jurisprudence in the 2003 book celebrating the High Court’s centenary. Within the field of public law, Simon has written extensively about constitutional property rights and the relationship between social justice and individual entitlements; accountability and the rule of law; constitutional theory; and human rights. Most recently, he published an article in the University of New South Wales Law Journal that drew on interdisciplinary research in cognitive science and the theory of language to argue for a new approach to constitutional interpretation and a detailed study of Australia’s executive government for an international collection published by Oxford University Press. As Australasian recent developments correspondent for the journal I.CON (International Journal of Constitutional Law) published by Oxford University Press and New York University, he has written about the Tampa case, the Plaintiff S157 privative clause case and (with Adrienne Stone) the High Court’s most recent foray into the implied freedom of political communication Coleman v Power. Human rights has been his principal focus since 2004, when Simon and colleagues Carolyn Evans and Kristen Walker were awarded a three-year grant by Australia’s peak research funding body, the Australian Research Council, to study how effectively Australian Parliaments protect human rights. Since 2005, the project has been carried on by Simon and Carolyn. As some Australian jurisdictions move towards adopting bills of rights, identifying which institutions best protect rights has become ever more controversial and important. Defenders of the traditional Australian system say that democratically elected parliaments are the best protection for rights.
56 Faculty of Law Research Report 2006 academic research profiles Simon Evans
Others argue that politicians need judicial oversight if rights The expertise in human rights protection developed are to be protected. This project has explored the strengths through this project had led to Simon and Carolyn acting as and weaknesses of the traditional system. The first stage consultants to the Victorian government during the design investigated all the existing mechanisms for ensuring that and implementation of the Victorian Charter of Human Bills comply with human rights. The second stage was a Rights. Some of their ongoing analysis of how the Victorian comprehensive survey of the legislation produced by the Charter will operate was published in the Public Law Commonwealth parliament and two state parliaments over Review in late 2006. They are currently writing two books a three year period tested whether parliamentary process presenting the results of their research into parliaments do in fact identify and deal competently with human rights and the Victorian Charter. issues. The third stage involved interviews with more than 50 parliamentarians about their understanding of human rights and their assessment of the current system for rights protection. The research has produced several major articles and has influenced the development of human rights policy in Victoria. Here there is room to highlight just two examples. In an article published in 2005 in the Melbourne University Law Review, Simon argued that Australian governments and parliaments should adopt two mechanisms designed to improve the protection of human rights in Australia: first, a requirement that executive agencies prepare human rights impact statements in relation to all significant policy proposals, and second, that an independent executive agency review the quality of these statements. These mechanisms aim to formalise and integrate human rights analysis with the process of developing policy options and to provide independent scrutiny of that analysis. They are designed to promote a culture of human rights in the executive branch of government, and they have the potential to further the fundamental democratic objective of assisting Australian legislatures to make their own assessment of the human rights impact of legislative proposals. The first of these recommendations was adopted by the Victorian government and parliament when enacting Australia’s first state-based human rights act, the Victorian Charter of Human Rights. In an article published in 2006 in the leading UK journal Public Law, Carolyn and Simon examined the leading Australian and UK parliamentary committees that consider the human rights implications of proposed legislation. They argued that the history of the Australian committees tended to make them focus on protecting a relatively narrow set of civil liberties rather than a broader set of human rights. They considered whether Australian committees should move towards the broader conception of human rights used by the UK committee and how that might be achieved, with or without a Bill of Rights.
Academic Research Profiles 57 academic research profiles Belinda Fehlberg
Belinda Fehlberg’s particular expertise is socio-legal (and more specifically, empirical) research in family law. Belinda is a graduate of the University of Melbourne (LLB (Hons), BA), holds a DPhil (Law) from the University of Oxford, and is admitted to practise as a barrister and solicitor in the Supreme Court of Victoria and the High Court of Australia. While undertaking her doctoral studies in the UK, Belinda worked part-time as a lecturer in the School of Law at the University of Warwick. She was appointed as a lecturer in the Melbourne Law School in 1994 and to a chair of law in 2004. Belinda’s research falls into two main areas: research on money and marriage, and research related to post- separation parenting. Her doctoral research on spousal guarantees, undertaken at the Centre for Socio-Legal Studies in Oxford from 1992–95, fell into the first of these categories. It involved testing the legal grounds for avoiding contracts and sociological literature on how couples make major financial decisions against empirical research involving interviews with couples and their lawyers about the circumstances in which spouses and de facto partners provide third party loan security for their spouse or partner’s business debts. Her thesis was published as a book by Clarendon Press, the academic imprint of Oxford University Press, and was awarded the OUP/Socio-Legal Studies Association book prize in 1998. Her research in this area has informed the judgments of the High Court of Australia and the New South Wales Court of Appeal, and the work of the Australian Law Reform Commission and the New South Wales Law Reform Commission. More recently, Belinda’s research on money and marriage has extended to pre-nuptial agreements, spousal maintenance, child support and matrimonial property division. Viewed as a whole, her research in this field has contributed to our understanding of the gap between the dynamics of intact intimate relationships and the legal rules applicable when relationships break down. Belinda’s research related to post-separation parenting arrangements has included responsibility for, and substantial contribution to, the research and writing of the Family Law Pathways: Case Studies (2000) report commissioned by the Family Law Pathways Advisory Group and drawn upon frequently throughout its 2001 report, which comprised the first step in the development of significant changes in 2006 to Australian law and
58 Faculty of Law Research Report 2006 academic research profiles Belinda Fehlberg
process regarding post-separation parenting. The Case Studies project was important in conveying the ad hoc way in which people accessed and encountered the Australian family law system. Also evident was a complex interaction between parenting and financial arrangements, providing the impetus for Belinda’s current research interest in the relationship between new shared parenting laws and financial settlements of separating parents. Belinda’s work in the area of post-separation parenting arrangements has included, with others, the first major research to be undertaken in Australia on stakeholder (including parent, child, contact service, referral agent) expectations and experiences of children’s contact services, which are designed to provide a safe environment for children to maintain contact with a parent in circumstances where this poses a risk to the child (eg due to child abuse). The findings influenced the Federal Government’s decision in the 2005–06 Budget to grant significant additional funding to contact services. Belinda also conducted the first research on jurisdictional overlap between the state children’s courts and the Family Court of Australia in the area of child protection, providing significant assistance to the Attorney-General’s Family Law Council on this issue in 2000. These projects, both funded by ARC grants, have increased our knowledge in areas of ongoing practical significance for many vulnerable families where little was previously known beyond the anecdotal. Belinda has published articles in a number of highly regarded refereed international and Australian law journals, including the Modern Law Review and the International Journal of Law, Policy and the Family. The innovative and interdisciplinary nature of her research has also allowed her to have input at a law reform and policy level. This was a central aspect of her role during 2000 as a Principal Research Fellow at the Australian Institute of Family Studies. Belinda’s most recent project, with Associate Professor Juliet Behrens of ANU, has been the completion of the manuscript for a family law textbook, Australian Family Law: The Contemporary Context, to be published by Oxford University Press in 2007. The book’s particular contribution lies in its thematic analysis and integration of relevant social sciences research into the discussion and analysis.
Academic Research Profiles 59 academic research profiles Michelle Foster
Michelle Foster joined the University of Melbourne Law School as a senior lecturer in 2005. Her teaching and research interests are in the areas of public law, international refugee law, and international human rights law. Michelle is the Director of the International Refugee Law Research Programme in the Institute for International Law and the Humanities at Melbourne Law School. Michelle graduated with a BComm (Hons) in Industrial Relations and an LLB from the University of New South Wales in 1996. Following graduation, Michelle worked as Research Director to the Hon AM Gleeson AC (then Chief Justice of NSW), and then for three years as Legal Research Officer for the Solicitor-General and Crown Advocate of NSW. From 2000–2004 Michelle completed a Masters of Law (LLM) and doctorate (SJD) at the University of Michigan, Ann Arbor, where she was a Michigan Grotius Fellow. While completing her graduate studies at Michigan she undertook an internship at the Advice for Individual Rights Centre in London, taught summer courses at the University of Michigan and University of Zagreb, and participated in three multi- disciplinary graduate student workshops in the US. Michelle’s main research interests are in international refugee law, and she has published widely in this field. Some of Michelle’s publications have been cited by domestic courts, such as the House of Lords and Court of Appeal (UK) and the Refugee Status Appeals Authority (NZ). Michelle was commissioned (with James Hathaway) by the UNHCR to contribute a paper to the Global Consultations process – a commemoration of the 50th anniversary of the Refugee Convention, in 2001. Since joining the University of Melbourne, Michelle has concentrated on two major research projects. The first has been the publication of a book based on her SJD dissertation, entitled, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, to be published by Cambridge University Press in 2007. This book represents the first scholarly work to consider the question of whether the 1951 Refugee Convention is capable of accommodating claims based on the deprivation of socio-economic rights – an issue that is considered at the ‘cutting edge’ of international refugee law. Traditionally, the dichotomy between ‘economic migrants’ and ‘political refugees’ has led scholars and decision-makers alike to assume that claims based on socio-economic deprivation are outside the parameters
60 Faculty of Law Research Report 2006 academic research profiles Michelle Foster
of the Refugee Convention regime. However, a range consistent application of the refugee definition to those of emerging refugee claims is beginning to challenge seeking protection. In this light, an important initiative the boundaries of the Refugee Convention regime and of the University of Michigan, the Michigan Guidelines question these traditional distinctions. For example, is a on International Refugee Law, focuses on the most child born outside the parameters of China’s one-child difficult issues in international refugee law today and policy, and thus subject to deprivations of economic formulates guidelines to be adopted by decision-makers and social rights, such as education and health care, an throughout the world. The culmination of each project is ‘economic migrant’ or a refugee? Is a Roma man from a biennial colloquium held in Ann Arbor, during which a the Czech Republic, who suffers extensive discrimination set of Guidelines is formulated by a group of international in education and employment, an ‘economic migrant’ or experts. The topic chosen for the 4th Colloquium on a refugee? What about a street child in the Democratic International Refugee Law in 2006 was one of enormous Republic of Congo whose government fails to provide him contemporary significance, namely, whether a state may or her with the basic tools of survival, such as food and decline to provide refugee protection on its own territory shelter? Michelle’s book challenges the distinctions that and instead transfer refugees to a third state (for example, have traditionally been relied upon to reject claims based whether Australia may decline to grant protection to on socio-economic deprivation. Her analysis of hundreds refugees arriving in Australia but rather transfer them to of refugee decisions across five common law jurisdictions Nauru). The new Guidelines on Protection Elsewhere, to reveals that in many respects international refugee law be published in the Spring 2007 edition of the Michigan has failed to take account of theoretical developments in Journal of International Law, conclude that such international law more generally, particularly concerning practices can be undertaken in very limited and closely the equal importance of socio-economic rights. Recent circumscribed circumstances. The analysis outlined in the developments have highlighted the fundamental accompanying paper by Michelle (‘Protection Elsewhere: importance and binding content of socio-economic The Legal Implications of Requiring Refugees to Seek rights obligations as a matter of international law, and Protection in Another State’, (2007) 28(1) Michigan Journal these developments have been increasingly supported of International Law, 223–286) concludes that most of the in important ways by civil society, as some of the major ‘protection elsewhere’ practices adopted to date are in human rights organisations have recently expanded their violation of the Refugee Convention and other international respective terms of reference into the field of economic human rights instruments. Michelle is currently working on and social rights. The book argues that by interpreting the establishing a long-term collaboration with the University Refugee Convention by reference to such developments of Michigan, in which LLB students at the University of in international law, the Convention regime will be Melbourne will have the opportunity to participate in the responsive to contemporary refugee flows, thus ensuring Colloquium/Guidelines process in 2007–8. its contemporary significance. The other major project on which Michelle has concentrated since beginning at Melbourne is establishing a collaboration with the University of Michigan’s Program in Refugee and Asylum Law. In 2005 Michelle obtained a University of Melbourne Collaborative Grant to enable the University of Melbourne’s Research Programme in International Refugee Law to become a research partner in the University of Michigan’s Guidelines in International Refugee Law project. The background to this project is that there is no international court or tribunal responsible for providing uniform guidance on the correct interpretation of the 1951 Refugee Convention. Thus, domestic courts and tribunals turn to comparative jurisprudence and to scholars to ensure uniform and
Academic Research Profiles 61 academic research profiles Andrew Mitchell
Andrew Mitchell joined the Faculty as a Senior Lecturer in 2006, having been a Senior Fellow since 2004. His major area of interest is international economic law and, in particular, the law of the World Trade Organization (WTO). Andrew graduated with first class honours in Law and Commerce from the University of Melbourne in 1998. He worked for a number of years with Allens Arthur Robinson (previously Arthur Robinson & Hedderwicks) in the litigation and general corporate sections before completing his Master of Laws at Harvard Law School. Then in 2001 he went to the University of Cambridge, where he undertook his PhD as a WM Tapp Scholar of Gonville & Caius College and a Cambridge Commonwealth Trust Scholar. In 2002, Andrew worked as a Consultant to the Organisation for Economic Co-operation and Development (OECD), on trade and competition issues. From 2003–2005, Andrew was a Consultant to the International Monetary Fund, focusing on WTO issues. During this time, he compiled, edited and contributed to Challenges and Prospects for the WTO, a book published by Cameron May in 2005. Andrew graduated with his PhD in mid 2006. In addition to his Melbourne teaching, he has taught WTO law to undergraduate and postgraduate students at Bond University, Monash University, and the University of Western Ontario, and to Australian and overseas government officials at the Department of Foreign Affairs and Trade (DFAT) and the International Development Law Organization. One of Andrew’s major areas of research concerns the intersection between the law of the WTO and international law more broadly. Andrew has focussed on the role that general principles of law and principles of customary international law could play in WTO dispute settlement. Part of this research is being published by Cambridge University Press as Legal Principles in WTO Disputes. Some of his other research in this area has been published in journals, including the European Journal of International Law (on proportionality and dispute settlement) and the World Trade Review (on special and differential treatment), and in invited chapters in books published by the WTO, Cambridge University Press, and DFAT.
62 Faculty of Law Research Report 2006 academic research profiles Andrew Mitchell
Andrew also has an interest in military law, which he has pursued practically as an Army Reserve Captain in the Legal Corps, as well as academically, writing a number of articles on military justice (which have been cited by the High Court of Australia) and the entry on military justice in The Oxford Companion to the High Court of Australia. He is particularly interested in questions concerning the constitutional validity of the separate system of military justice in Australia, which has been the subject of numerous High Court challenges, as military tribunals are not constituted as Chapter III courts. He has also written a number of articles on the issue of former-client conflicts of interest and international humanitarian law, where he has separately examined the law of belligerent reprisals and genocide. Andrew is supervising three PhD students, who are writing on the ‘Development of the Standard of Review in WTO Dispute Settlement’, ‘Targeting During Armed Conflict’, and ‘The Extension of the Continental Shelf’. Andrew’s research in 2007 will focus on issues relating to preferential trade agreements (PTAs) including the Australia-US Free Trade Agreement, the relationship between public international law and PTAs, and the legal requirements for PTAs in the WTO. He will also write short commentaries on particular WTO provisions (Max Planck Commentaries on World Trade Law) and electronic commerce (Princeton Encyclopaedia of the World Economy). Finally, Andrew has been engaged by Telstra for a research project on trade and telecommunications issues.
Academic Research Profiles 63 Published research
64 Faculty of Law Research Report 2006 Published research
Books Authored Books Edited Duns, J, Davison, M and Beaton-Wells, C, Competition Ali, P and Gregoriou, G (eds), International Corporate Law: Cases and Materials (2nd ed), LexisNexis Governance after Sarbanes-Oxley, John Wiley & Sons, Butterworths, Sydney (2006) Hoboken (2006) Ellinghaus, M, Australian Cases on Contract 2006 Edition Arup, C, Gahan, P, Howe, J, Johnstone, R, Mitchell, R (7th ed), Code Press, Melbourne (2006) and O’Donnell, A (eds), Labour Law and Labour Market Regulation, Federation Press, Sydney (2006) Gronow, M and Mason R, McPherson’s Law of Company Liquidation (5th ed), Thomson Lawbook Co, North Ryde Boyd, S and Rhoades, H (eds), The International Library (2006) of Essays in Law and Society: Law and Families, Ashgate, Aldershot (2006) Hanrahan, P, Ramsay, I and Stapledon, G, Commercial Applications of Company Law (7th ed), CCH Australia, De Vries Robbe, J and Ali, P (eds), Innovations in North Ryde (2006) Securitisation, Kluwer Law International, The Hague (2006) Hanrahan, P, Ramsay, I, Stapledon, G, Yeo, V and Kenyon, A and Richardson, M (eds), New Dimensions in Lee, S, Commercial Applications of Company Law in Privacy Law: International and Comparative Perspectives, Singapore (2nd ed), CCH Asia Pacific, Singapore (2006) Cambridge University Press, New York (2006) Kenyon, A, Defamation: Comparative Law and Practice, Langton, M, Mazel, O, Palmer, L, Shain, K and Tehan, M UCL Press, London (2006) (eds), Settling with Indigenous People, Federation Press, Sydney (2006) Kobetsky, M, Krever, R, O’Connell, A and Stewart, M, Income Tax, Text, Materials and Essential Cases, Le Roy, K and Saunders, C (eds), Legislative, Executive, Federation Press, Sydney (2006) and Judicial Governance in Federal Countries, McGill- Queen’s University Press, Montreal (2006) Lanham,D, Bartal, B, Evans, R and Wood, D, Criminal Laws in Australia, Federation Press, Sydney (2006) Orford, A (ed), International Law and its Others, Cambridge University Press, New York (2006) Luntz, H, Assessment of Damages for Personal Injury and Death: General Principles, LexisNexis, Chatswood (2006) Pernice, I, Kokott, J and Saunders, C (eds), The Future of the European Judicial System in a Comparative Luntz, H and Hambly, D, Torts: Cases and Commentary Perspective, Cambridge University Press, Cambridge (Revised 5th ed), LexisNexis Butterworths, Sydney (2006) (2006) Ricketson, S and Ginsburg, J, International Copyright and Saunders, C and Le Roy, K (eds), Legislative, Executive, Neighbouring Rights: The Berne Convention and Beyond and Judicial Governance in Federal Countries, McGill- (Volume I and II) (2nd ed), Oxford University Press, New Queen’s University Press, Montreal (2006) York (2006) Stewart, M (ed), Tax Law and Political Institutions, Triggs, G, International Law: Contemporary Principles Federation Press, Sydney (2006) and Practices, LexisNexis, Chatswood (2006) Whiting, A and Evans, C (eds), Mixed Blessings: Laws, Weaver, R, Kenyon, A, Partlett, D and Walker, C, Religions, and Women’s Rights in the Asia-Pacific Region, The Right to Speak Ill: Defamation, Reputation and Martinus Nijhoff Publishers, Leiden (2006) Free Speech, Carolina Academic Press, Durham (2006) Young, S and Tham, J, Political Finance in Australia: Book Chapters A Skewed and Secret System, Australian School of Social Ali, P, ‘Corporate Governance and Derivatives End Users’ Sciences, The Australian National University, Canberra in J Denton (ed), Practical Derivatives: A Transactional (2006) Approach, Globe Business Publishing, London (2006), 9–23 Ali, P, ‘Corporate Social Responsibility and Feduciary Investment in Australia’ in P Ali and G Gregoriou (eds), International Corporate Governance after Sarbanes-Oxley, John Wiley & Sons, Hoboken (2006), 161–171
Published Research 65 Published research
Ali, P, ‘Hedge Funds, Corporate Governance and the Cooney, S, ‘Labour Market Regulation in Comparative Separation of Ownership and Control’ in D Kaiser and Perspective’ in S Acharya and C Brassard (eds), Labour G Gregoriou (eds), Hedge Funds and Managed Futures: Market Regulation and Deregulation in Asia, Academic A Handbook for Institutional Investors, Risk Books, London Foundation, New Delhi (2006), 33–54 (2006), 197–208 Dabscheck, B, ‘‘At the Top Table’: Player Unions in Soccer’ Ali, P, ‘Investing in Death/Speculating on Mortality: in W Andreff and S Szymanski (eds), Handbook on the Some Thoughts on Life Insurance Securitization’ in P Ali Economics of Sport, Edward Elgar Publishing, Cheltenham and G Gregoriou (eds), International Corporate Governance (2006), 661–667 after Sarbanes-Oxley, John Wiley & Sons, Hoboken Evans, C and Whiting, A, ‘Situating the Issues, Framing (2006), 185–193 the Analysis’ in A Whiting and C Evans (eds), Mixed Ali, P, ‘Securitisation of Catastrophic Risk’ in J De Vries Blessings: Laws, Religions, and Women’s Rights in the Robbe and P Ali (eds), Innovations of Securitisation, Kluwer Asia-Pacific Region, Martinus Nijhoff Publishers, Leiden Law International, The Hague (2006), 35–45 (2006), 1–23 Ali, P, ‘Synthetic Collateralized Debt Obligations (CDO) Evans, C, ‘Human Rights Commissions and Religious Squares and the Continuing Evolution of Funds’ in Conflict in the Asia-Pacific Region’ in U Dolgopol and G Gregoriou (ed), Funds of Hedge Funds: Performance, J Gardam (eds), The Challenge of Conflict: International Assessment, Diversification, and Statistical Properties, Law Responds (2006), 145–160 Butterworth-Heinemann, Burlington (2006), 375–382 Evans, S, ‘Constitutional Property Rights in Australia: Ali, P and Chang, A, ‘Fund-Raising for High-Technology Reconciling Individual Rights and the Common Good’ in Companies: The Intellectual Property Securitisation T Campbell, A Stone and J Goldsworthy (eds), Protecting Option’ in J De Vries Robbe and P Ali (eds), Innovations Rights Without a Bill of Rights: Institutional Performance in Securitisation, Kluwer Law International, The Hague and Reform in Australia, Ashgate, Aldershot (2006), (2006), 211–220 197–222 Brennan, D, ‘Australian Television Broadcasts as Copyright Garnett, R, ‘Australia’ in M Pryles (ed), Dispute Resolution Property’ in F Macmillan and K Bowrey (eds), New in Asia, Kluwer Law International, Netherlands (2006), Directions in Copyright Law, Volume 3, Edward Elgar, 35–84 Cheltenham (2006), 107–116 Gaze, E, ‘WorkChoices or No Choices? The Impact of Carney, T, Ramia, G and Chapman, A, ‘Which Law is the New Industrial Relations Laws on Work and Family’ in Laggard? Regulation and the Gaps Between Labour Law J Teicher, A O’Rourke and R Lambert (eds), WorkChoices: and Social Security Law’ in C Arup, P Gahan, J Howe, The New Industrial Relations Agenda, Pearson Education, R Johnstone, R Mitchell and A O’Donnell (eds), Labour Frenchs Forest (2006), 106–122 Law and Market Regulation, Federation Press, Sydney Godden, L, ‘Efficiency and Environmental Sustainability: (2006), 383–409 Using Market Mechanisms for Water Resources Chapman, A, ‘Regulating Family through Employee Regulation in Australia’ in B Barton, L Barrera-Hernandez Entitlements’ in C Arup, P Gahan, J Howe, R Jonstone, and A Ronne (eds), Regulating Energy and Natural R Mitchell and A O’Donnell (eds), Labour Law and Market Resources, Oxford University Press, New York (2006), Regulation, Federation Press, Sydney (2006), 454–469 292–311 Christie, A, ‘Intellectual Property and Intangible Assets: Howe, J, ‘‘Deregulation’ of Labour Relations in Australia: A Legal Perspective’ in D Bosworth and E Webster (eds), Towards a More ‘Centred’ Command and Control Model’ The Management of Intellectual Property, Edward Elgar in C Arup, P Gahan, J Howe, R Johnstone, R Mitchell Publishing, Cheltenham (2006), 23–39 and A O’Donnell (eds), Labour Law and Labour Market Regulation, Federation Press, Sydney (2006), 147–166 Cooney, S, ‘Exclusionary Self-Regulation: A Critical Evaluation of the AMMA’s Proposal in the Mining Industry’ in C Arup, P Gahan, J Howe, R Johnstone, R Mitchell and A O’Donnell (eds), Labour Law and Labour Market Regulation, Federation Press, Sydney (2006), 187–201
66 Faculty of Law Research Report 2006 Published research
Howe, J, ‘‘Money and Favours’: Government Deployment McDougall, C, ‘The Sexual Violence Jurisprudence of The of Public Wealth as an Instrument of Labour Regulation’ International Criminal Tribunal for the Former Yugoslavia in C Arup, P Gahan, J Howe, R Johnstone, R Mitchell and the International Criminal Tribunal for Rwanda: The and A O’Donnell (eds), Labour Law and Labour Market Silence Has Been Broken but There’s Still a Lot to Shout Regulation, Federation Press, Sydney (2006), 167–186 About’ in U Dolgopol and J Gardam (eds), The Challenge of Conflict: International Law Responds, Martinus Nijhoff Howe, J, Johnstone, R and Mitchell, R, ‘Constituting and Publishers, Leiden (2006), 331–346 Regulating the Labour Market for Social and Economic Purposes’ in C Arup, P Gahan, J Howe, R Johnstone, Mitchell, A, ‘Fair Crack of the Whip: Examining R Mitchell and A O’Donnell (eds), Labour Law and Labour Procedural Fairness in WTO Disputes Using an Australian Market Regulation, Federation Press, Sydney (2006), Administrative Law Framework’ in V Wood, M Bliss, 307–321 A Gorely, M Jennings, M Durnan, R Wild and R Morris (eds), Ten Years of WTO Dispute Settlement: Australian Kenyon, A and Richardson, M, ‘New Dimensions in Perspectives, Department of Foreign Affairs and Trade, Privacy: Communications Technologies, Media Practices Canberra (2006), 45–69 and Law’ in A Kenyon and M Richardson (eds), New Dimensions in Privacy Law: International and Comparative Mitchell, R and Arup, C, ‘Labour Law and Labour Market Perspectives, Cambridge University Press, New York Regulation’ in C Arup, P Gahan, J Howe, R Johnstone, (2006), 1–10 R Mitchell and A O’Donnell (eds), Labour Law and Labour Market Regulation, Federation Press, Sydney (2006), 3–18 Lindsay, D and Ricketson, S, ‘Copyright, Privacy and Digital Rights Management (DRM)’ in A Kenyon and O’Connell, A, Kobetsky, M and Stewart, M, ‘Australia’ M Richardson (eds), New Dimensions in Privacy Law: in P Bongaarts, D Bouzoraa, G Maisto and A Pelvang (eds), International and Comparative Perspectives, Cambridge Investment Funds: International Guide to the Taxation University Press, New York (2006), 121–153 and Regulation of Mutual Investment Funds and their Investors, International Bureau of Fiscal Documentation, Lindsey, T, ‘Culture, Insolvency and Legal Orientalism in Netherlands (2006), 1–111 Asia: Reaching for Goering’s Revolver’ in R Tomasic (ed), Insolvency Law in East Asia, Ashgate, Aldershot (2006), O’Donnell, A and Mitchell, R, ‘Participation, Exchange, 509–534 and Rights and Obligations in Labour Markets and Work Relationships’ in C Arup, P Gahan, J Howe, R Johnstone, Lindsey, T, ‘From Soepomo to Prabowo: Law, Violence R Mitchell and A O’Donnell (eds), Labour Law and Labour and Corruption in the Preman State’ in C Coppell (ed), Market Regulation, Federation Press, Sydney (2006), Violent Conflicts in Indonesia: Analysis, Representation, 505–519 Resolution, Routledge, London (2006), 19–36 Orford, A, ‘A Jurisprudence of the Limit’ in A Orford (ed), Marshall, S, ‘An Exploration of Control in the Context International Law and its Others, Cambridge University of Vertical Disintegration’ in C Arup, P Gahan, J Howe, Press, New York (2006), 1–31 R Johnstone, R Mitchell and A O’Donnell (eds), Labour Law and Labour Market Regulation, Federation Press, Orford, A, ‘Biopolitics and the Tragic Subject of Human Sydney (2006), 542–560 Rights’ in E Dauphinee and C Masters (eds), The Logics of Biopower and the War on Terror, Palgrave Macmillan, New Mathews, R, ‘The First Review Conference of York (2006), 205–228 the Chemical Weapons Convention: A Drafter’s Perspective’ in R Thakur and E Haru (eds), The Chemical Orford, A, ‘Trade, Human Rights and the Economy of Weapons Convention: Implementation, Challenges and Sacrifice’ in A Orford (ed), International Law and its Others, Opportunities, United Nations University Press, Tokyo Cambridge University Press, New York (2006), 156–196 (2006), 44–74 Otto, D, ‘Lost in Translation: Re-scripting the Sexed McCormack, T, ‘Self-Defence in International Criminal Subjects of International Human Rights Law’ in Law’ in H Abtahi and G Boas (eds), The Dynamics of A Orford (ed), International Law and its Others, International Criminal Justice: Essays in Honour of Sir Cambridge University Press, New York (2006), 318–356 Richard May, Martinus Nijhoff Publishers, Leiden (2006), 231–255
Published Research 67 Published research
Palmer, L and Tehan, M, ‘‘Anchored to the Land’: Ricketson, S, ‘Restrictions on the Exercise of Rights: Asserting and Recognising Aboriginal Jurisdiction in the Limitations and Exceptions’ in S Ricketson and J Ginsburg Northwest Territories’ in M Langton, O Mazel, L Palmer, (eds), International Copyright and Neighbouring Rights: K Shain and M Tehan (eds), Settling with Indigenous The Berne Convention and Beyond (Volume I and II), People, Federation Press, Sydney (2006), 66–93 Oxford University Press, New York (2006), 755–878 Palmer, L and Tehan M, ‘From Remnant Lands to Ricketson, S, ‘The Berne Convention and Neighbouring Sustainable Communities: Negotiating Spaces for Rights’ in S Ricketson and J Ginsburg (eds), International Indigenous Land and Jurisdiction in Darwin and Vancouver’ Copyright and Neighbouring Rights: The Berne Convention in M Langton, O Mazel, L Palmer, K Shain and M Tehan and Beyond (Volume I and II), Oxford University Press, (eds), Settling with Indigenous People, Federation Press, New York (2006) 1204–1288 Sydney (2006) 231–256 Ricketson, S, ‘Treaty Interpretation and the Concept of Palmer, L and Tehan, M, ‘Sharing Citizenship and Self- Union’ in S Ricketson and J Ginsburg (eds), International Government in Canada: A Case Study of James Bay and Copyright and Neighbouring Rights: The Berne Convention Nunavik (Northern Quebec)’ in M Langton, O Mazel, and Beyond (Volume I and II), Oxford University Press, L Palmer, K Shain and M Tehan (eds), Settling with New York (2006), 179–232 Indigenous People, Federation Press, Sydney (2006), Rider, C, ‘Tax and the Regulatory Conception of Labour 19–43 Law’ in C Arup, P Gahan, J Howe, R Johnstone, R Mitchell Parsley, C, ‘Seasons in the Abyss: Reading the Void in and A O’Donnell (eds), Labour Law and Labour Market Cubillo’ in A Orford (ed), International Law and its Others, Regulation, Federation Press, Sydney (2006), 364–382 Cambridge University Press, New York (2006), 100–127 Rogers, J, ‘Flesh Made Law: The Economics of Female Peel, J, ‘Precautionary Only in Name? Tensions between Genital Mutilation Legislation’ in A Orford (ed), International Precaution and Risk Assessment in the Australian GMO Law and its Others, Cambridge University Press, New York Regulatory Framework’ in E Fisher, J Jones and R von (2006), 357–386 Schomberg (eds), Implementing the Precautionary Rubenstein, K, ‘Rethinking Nationality in International Principle: Perspectives and Prospects, Edward Elgar Humanitarian Law’ in U Dolgopol and J Gardam (eds), Publishing, Cheltenham (2006), 202–220 The Challenge of Conflict: International Law Responds, Rhoades, H, ‘Yearning for Law: Fathers’ Groups and Martinus Nijhoff Publishers, Leiden (2006), 89–104 Family Law Reform in Australia’ in R Collier and S Sheldon Saunders, C, ‘Apples, Oranges and Comparative (eds), Fathers’ Rights Activism and Law Reform in Administrative Law’ in H Corder (ed), Acta Juridica: Comparative Perspective, Hart Publishing, Oxford (2006), Comparing Administrative Justice Across the 125–146 Commonwealth, Juta & Co, Cape Town (2006), Richardson, M and Hitchens, L, ‘Celebrity Privacy and 423–449 Benefits of Simple History’ in A Kenyon and M Richardson Saunders, C, ‘Democracy, Transparency and the (eds), New Dimensions in Privacy Law: International and Apparent Demise of the Treaty Establishing a Constitution Comparative Perspectives, Cambridge University Press, for Europe’ in J Bell and C Kilpatrick (eds), Cambridge New York (2006), 250–269 Yearbook of European Legal Studies, Hart Publishing, Ricketson, S, ‘Copyright and Neighbouring Rights Oxford (2006), 9–35 Come of Age: Digitization and International Trade’ in Saunders, C, ‘Legislative, Executive, and Judicial S Ricketson and J Ginsburg (eds), International Copyright Institutions: A Synthesis’ in C Saunders and K Le Roy (eds), and Neighbouring Rights: The Berne Convention and Legislative, Executive, and Judicial Governance in Federal Beyond (Volume I and II), Oxford University Press, Countries, McGill-Queens’s University Press, Montreal New York (2006), 134–175 (2006), 344–384 Saunders, C and Le Roy, K, ‘Commonwealth of Australia’ in C Saunders and K Le Roy (eds), Legislative, Executive, and Judicial Governance in Federal Countries, McGill- Queen’s University Press, Montreal (2006), 38–71
68 Faculty of Law Research Report 2006 Published research
Skene, L, ‘Life-Prolonging Treatment and Patients’ Legal Waugh, J, ‘The Inevitable McCulloch and His Rivals, Rights’ in S McLean (ed), First Do No Harm: Law, Ethics 1863–1877’ in P Strangio and B Costar (eds), and Healthcare, Ashgate, Aldershot (2006), 421–429 The Victorian Premiers 1856–2006, Federation Press, Sydney (2006), 30–50 Skene, L and Otlowski, M, ‘Genetic Privacy, Discrimination and Insurance’ in I Feckelton and K Petersen (eds), Weatherall, K, ‘‘Pretend-y Rights’: On the Insanely Disputes and Dilemmas in Health Law, Federation Press, Complicated New Regime for Performers’ Rights in Sydney (2006) 622–638 Australia, and How Australian Performers Lost Out’ in F Macmillan and K Bowrey (eds), New Directions Stapledon, G, ‘CEO Compensation in Australia’s Largest in Copyright Law, Volume 3, Edward Elgar Publishing, Companies’ in G Gregoriou and P Ali (eds), International Cheltenham (2006), 171–197 Corporate Governance After Sarbanes-Oxley, John Wiley & Sons, Hoboken (2006), 319–336 Whiting, A, ‘In the Shadow of Developmentalism: The Human Rights Commission of Malaysia at the Stapledon, G, ‘The Development of Corporate Intersection of State and Civil Society Priorities’ in C Kumar Governance in Australia’ in C Mallin (ed), Handbook and D Srivastava (eds), Human Rights and Development: on International Corporate Governance, Edward Elgar Law, Policy and Governance, Lexis Nexis, Hong Kong Publishing, Cheltenham (2006), 170–189 (2006) 383–407 Steele, S, ‘Insolvency Law in Japan’ in R Tomasic (ed), Insolvency Law in East Asia, Ashgate, Aldershot (2006), Refereed Journal Articles 13–62 Ali, P, ‘Portable Alpha and Hedge Funds: Legal Issues’ Stewart, M, ‘Introduction: New Research on Tax Law (2006) 11 Derivatives, Use, Trading & Regulation and Political Institutions’ in M Stewart (ed), Tax Law and 366–374 Political Institutions, Federation Press, Sydney (2006), 1–9 Alves-Perini, N, Harrison, M, Rhoades, H and Tehan, M, Palmer, L, Langton, M and Mazel, O, ‘Sharing Swain, S, ‘Finding Fault in Marital Property Law: Land and Resources: Modern Agreements and Treaties A Little Bit of History Repeating?’ (2006) 34 Federal with Indigenous People in Settler States’ in M Langton, Law Review 377–398 O Mazel, L Palmer, K Shain and M Tehan (eds), Settling Anderson, K, ‘How Effective is the International with Indigenous People, Federation Press, Sydney Convention for the Protection of All Persons from Enforced (2006), 1–18 Disappearance Likely to be in Holding Individuals Criminally Tham, J, ‘Job Security Laws: Constituting ‘Standard’ and Responsible for Acts of Enforced Disappearance?’ (2006) ‘Non-Standard’ Employment’ in C Arup, P Gahan, J Howe, 7 The Melbourne Journal of International Law 245–277 R Johnstone, R Mitchell and A O’Donnell (eds), Labour Anderson, K and Ramsay, I, ‘From the Picketline to Law and Labour Market Regulation, Federation Press, the Boardroom: Union Shareholder Activism in Australia’ Sydney (2006), 657–676 (2006) 24 Company and Securities Law Journal 279–314 Triggs, G, ‘Challenges for the International Criminal Court: Beaton-Wells, C, ‘Mergers without Markets? Unilateral Terrorism, Immunity Agreements and National Trials’ in Effects Analysis in the United States and its Prospects U Dolgopol and J Gardam (eds), The Challenge of Conflict: in Australia’ (2006) 34 Australian Business Law Review International Law Responds, Martinus Nijhoff Publishers, 186–210 Leiden (2006), 315–330 Beaton-Wells C, ‘Recent Corporate Penalty Assessments Waugh, J, ‘Deadlocks in State Parliaments’ in G Winterton under the Trade Practices Act and the Rise of General (ed), , Federation Press, State Constitutional Landmarks Deterrence’ (2006) 14 Competition and Consumer Law Sydney (2006) 185–210 Journal 65–87 Waugh, J, ‘Haines, O’Shanassy, Nicholson and Heales: Bosland, J, ‘Digital Television and Multichannelling: The Old Guard, 1855–1863’ in P Strangio and B Costar Changes under the Broadcasting Legislation Amendment (eds), , Federation The Victorian Premiers 1856–2006 (Digital Television) Act 2006’ (2006) 11 Media and Arts Press, Sydney (2006), 12–29 Law Review 440–446
Published Research 69 Published research
Bosland, J, Weatherall, K and Jensen, P, ‘Trade Mark and Evans, C, ‘Strengthening the Role of the Special Counterfeit Litigation in Australia’ (2006) 2006 Intellectual Rapporteur on Freedom of Religion or Belief’ (2006) Property Quarterly 347–377 1 Religion and Human Rights 75–96 Brennan, D, ‘The Trade Mark and the Firm’ (2006) 3 Evans, C, ‘The ‘Islamic Scarf’ in the European Court Intellectual Property Quarterly 283–290 of Human Rights’ (2006) 7 The Melbourne Journal of International Law 52–73 Brennan, D, ‘What Can It Mean to ‘Prevent or Inhibit the Infringement of Copyright? – A Critique on Stevens v Sony’ Evans, C and Evans, S, ‘Evaluating the Human Rights (2006) 17 Australian Intellectual Property Journal 81–98 Performance of Legislatures’ (2006) 6 Human Rights Law Review 545–569 Bryan, M, ‘Equity and the Warped Moral Approach’ (2006) 17 King’s College Law Journal 105–111 Evans, C and Evans, S, ‘Legislative Scrutiny Committees and Parliamentary Conceptions of Human Rights’ (2006) Chapman, A, ‘Unfair Dismissal Law and Work Choices: Winter Public Law 785–806 From Safety Net Standard to Legal Privilege’ (2006) 16 Economic and Labour Relations Review 237–264 Evans, S, ‘Australia’ (2006) 4 International Journal of Constitutional Law 517–532 Chu, S, Lawrence, M and Stapledon, G, ‘Trends in ASX-Listed Bank Governance’ (2006) Special Edition Evans, S, ‘Should Australian Bills of Rights Protect Economic Papers 26–38 Property Rights?’ (2006) 31 Alternative Law Journal 19–24 Cooney, S, ‘Command and Control in the Workplace: Evans, S, ‘The Meaning of Constitutional Terms’ Agreement-making under Work Choices’ (2006) 16 Essential Feature, Family Resemblance and Theory-Based Economic and Labour Relations Review 147–164 Approaches’ (2006) 29 University of New South Wales Law Journal 207–237 Cooney, S, Howe, J and Murray, J, ‘Time and Money Under Work Choices: Understanding the New Workplace Evans, S and Evans, C, ‘Legal Redress under the Relations Act as a Scheme of Regulation’ (2006) 29 Victorian Charter of Human Rights and Responsibilities’ University of New South Wales Law Journal 215–241 (2006) 17 Public Law Review 264–281 Dabscheck, B, ‘The Contract Regulation Club’ (2006) Fenwick, C, ‘How Low Can You Go? Minimum Working 16 Economic and Labour Relations Review 3–24 Conditions under Australia’s New Labour Laws’ (2006) 16 Economic and Labour Relations Review 85–126 Dent, C, ‘Decision Making and Quality in Patents: An Exploration’ (2006) 28 European Intellectual Property Fenwick, C, ‘Labour Law in Namibia: Towards an Review 381–388 ‘Indigenous Solution?’ (2006) 123 South African Law Journal 665–699 Dent, C, ‘Patent Opposition and the Constitution: Before or After?’ (2006) 17 Australian Intellectual Property Journal Fenwick, C and Landau, I, ‘Work Choices in International 217–231 Perspective’ (2006) 19 Australian Journal of Labour Law 127–143 Dent, C, ‘Patent Policy in Early Modern England: Jobs, Trade and Regulation’ (2006) 10 Legal History 71–95 Finnin, S, ‘Salim Ahmed Hamdan, Petitioner v Donald H Rumsfeld, Secretary of Defense: Has the Bush Dent, C and Weatherall, K, ‘Lawyer’s Decisions in Administration’s Experiment with Military Commissions Australian Patent Dispute Settlements: An Empirical come to an End?’ (2006) 7 The Melbourne Journal of Perspective’ (2006) 17 Australian Intellectual Property International Law 373–406 Journal 255–276 Gans, J, ‘Similar facts after Phillips’ (2006) 30 Criminal Dunworth, T, Mathews, R and McCormack, T, ‘National Law Journal 224–245 Implementation of the Biological Weapons Convention’ (2006) 11 Journal of Conflict and Security Law 93–118 Garnett, R, ‘An Overview of Choice of Law, Jurisdiction and Foreign Judgment Enforcement in IP Disputes’ (2006) Duxbury, A, ‘The Commonwealth Secretariat and the 11 Media and Arts Law Review 341–354 Implementation of Human Rights’ (2006) 95 The Round Table 425–440
70 Faculty of Law Research Report 2006 Published research
Garnett, R, ‘Cross-Border Internet Trade Mark Litigation: Kenyon, A and Wright, R, ‘Television as Something Towards a Model of Co-Existence and Parallel Use’ (2006) Special? Content Control Technologies and Free-To-Air TV’ 28 European Intellectual Property Review 213–219 (2006) 30 Melbourne University Law Review 338–369 Garnett, R and Nguyen, K, ‘Enforcement of Arbitration Kobetsky, M, ‘Article 7 of the OECD Model: Defining Awards in Vietnam’ (2006) 2 Asian International Arbitration the Personality of Permanent Establishments’ (2006) 60 Journal 137–150 Bulletin for International Fiscal Documentation 411–425 Genovese, A, ‘Family Histories: John Hirst v Feminism, Kordvani, A, ‘Hospitality, Politics of Mobility, and the in the Family Court of Australia’ (2006) 21 Australian Movement of Service Suppliers under the GATS’ (2006) Feminist Studies 173–196 7 The Melbourne Journal of International Law 74–103 Godden, L, ‘Terrorism: Reinvoking the Barbarian to Secure Lenne, J, Mitchell, R and Ramsay, I, ‘Employee Share the Space of Civilisation’ (2006) 24 Australian Feminist Law Ownership Schemes in Australia: A Survey of Key Journal 69–94 Issues and Themes’ (2006) 14 International Journal of Employment Studies 1–34 Godden, L, Nelson, R and Peel, J, ‘Controlling Invasive Species: Managing Risks to Australia’s Agricultural Lindell, G, ‘State Legislative Power to Enact Same-Sex Sustainability and Biodiversity Protection’ (2006) 13 Marriage Legislation, and the Effect of the Marriage Act Australasian Journal of Environmental Management 1961 (Cth) as Amended by the Marriage Amendment Act 166–181 2004 (Cth)’ (2006) 9 Constitutional Law and Policy Review 25–36 Gollan, P and Patmore, G, ‘Transporting the European Social Partnership Model to Australia’ (2006) 48 Journal Lindell, G, ‘The Statutory Protection of Rights and of Industrial Relations 217–256 Parliamentary Sovereignty: Guidance from the United Kingdom?’ (2006) 17 Public Law Review 188–208 Harijanti, S and Lindsey, T, ‘Indonesia: General Elections Test the Amended Constitution and the New Marshall, S and Mitchell, R, ‘Enterprise Bargaining, Constitutional Court’ (2006) 4 International Journal of Managerial Prerogative and the Protection of the Workers’ Constitutional Law 138–150 Rights: An Argument of the Role of Law and Regulatory Strategy in Australia under the Work Place Relations Act Harrison, N, ‘Extradition of the ‘Bali Nine’: Can and Should 1996 (Cth)’ (2006) 22 International Journal of Comparative the Risk of Capital Punishment Facing Australians be Labour Law and Industrial Relations 299–327 Relevant to Extradition Decisions?’ (2006) 1 International Journal of Punishment and Sentencing 221–239 Miller, C, Campbell, R and Ramsay, I, ‘The Takeovers Panel – An Empirical Study’ (2006) 3 Macquarie Journal Henckels, C, ‘GMOs in the WTO: A Critique of the Panel’s of Business Law 199–240 Legal Reasoning in EC – Biotech’ (2006) 7 The Melbourne Journal of International Law 278–305 Mitchell, A, ‘A Legal Principle of Special and Differential Treatment for WTO Disputes’ (2006) 5 World Trade Horan, J, ‘The Law and Lore of the Australian Civil Jury Review 445–469 and Civil Justice System’ (2006) 9 Flinders Journal of Law Reform 29–49 Mitchell, A, ‘Good Faith in WTO Dispute Settlement’ (2006) 7 The Melbourne Journal of International Law Howe, J, ‘Creating Decent Jobs: The Role of Regulation 399–371 in Facilitating Transitions Between Employment and Unemployment in the Labour Market’ (2006) 32 Mitchell, A, ‘Proportionality and Remedies in WTO Australian Bulletin of Labour 295–313 Disputes’ (2006) 17 European Journal of International Law 985–1008 Jogarajan, S, ‘Bring Them Home – The Case for Tax Concessions for Returning Australians’ (2006) 16 Moritz, S and Christie, A, ‘Second-Tier Patent Systems: Revenue Law Journal 1–24 The Australian Experience’ (2006) 4 European Intellectual Property Review 230–240 Jogarajan, S, ‘Looking East – the Indian Tax System and Australian FDI’ (2006) 10 Asia-Pacific Journal of Taxation 23–35
Published Research 71 Published research
Murphy, B and Cameron, C, ‘Access to Justice and the Sheehan, K, ‘Outrage + Camouflage: The Utility of the Evolution of Class Action Litigation in Australia’ (2006) 30 Managerial Power Approach in Explaining Executive Melbourne University Law Review 399–440 Remuneration’ (2006) 24 Company and Securities Law Journal 24–40 Orford, A, ‘Commissioning the Truth’ (2006) 3 Columbia Journal of Gender and Law 851–883 Shi, C, ‘Securities Regulation and Competition in China’ (2006) 14 Trade Practices Law Journal 120–128 Oswald, B, ‘Addressing the International Law and Order Vacuum: Key Issues and Dilemmas for Peacekeeping Skene, L, ‘Conjunctions and Disjunctions’ (2006) Operations’ (2006) 6 New Zealand Armed Forces Law Macquarie Law Symposium 51–57 Review 1–19 Skene, L, ‘Should the Law Limit Genetic Tests on Oswald, B and Finnin, S, ‘Combating the Trafficking Embryos and Foetuses?’ (2006) 29 University of New of Persons on Peace Operations’ (2006) 6 International South Wales Law Journal 250–253 Peacekeeping 1–32 Smith, A, ‘Defending the Unpopular Down-Under’ (2006) Parker, C, ‘The ‘Compliance’ Trap: The Moral Message 30 Melbourne University Law Review 495–553 in Responsive Regulatory Enforcement’ (2006) 40 Law Stapledon, G, ‘The Determinants of CEO Compensation: & Society Review 591–622 Rent Extraction or Labour Demand?’ (2006) 38 British Parker, C and Nielsen, V, ‘Do Businesses Take Accounting Review 259–275 Compliance Systems Seriously? An Empirical Study of the Stewart, M, ‘‘Are You Two Interdependent?’ Family, Implementation of Trade Practices Compliance Systems Property and Same-Sex Couples in Australia’s in Australia’ (2006) 30 Melbourne University Law Review Superannuation Regime’ (2006) 28 Sydney Law Review 441–494 437–476 Patmore, G, ‘Choosing the Republic: The Legal and Stone, A and Evans, S, ‘Australia: Freedom of Constitutional Steps in Australia and Canada’ (2006) Speech and Insult in the High Court of Australia’ (2006) 31 Queen’s Law Journal 770–795 4 International Journal of Constitutional Law 677–688 Peel, J, ‘A GMO by Any Other Name… Might Be an SPS Szorenyi, A and Rogers, J, ‘Congealed by Law: Risk!: Implications of Expanding the Scope of the WTO Terrorism, Torture and the Possibilities of Critique’ (2006) Sanitary and Phytosanitary Measures Agreement’ (2006) 24 Australian Feminist Law Journal 1–19 17 European Journal of International Law 1109–1031 Tobin, J, ‘Beyond the Supermarket Shelf: Using a Ramsay, I and Saunders, B, ‘Litigation by Shareholders Rights Based Approach to Address Children’s Health and Directors: An Empirical Study of the Statutory Needs’ (2006) 14 International Journal of Children’s Derivative Action’ (2006) 6 Journal of Corporate Law Rights 275–306 Studies 397–446 Voon, T, ‘State Support for Audiovisual Products in Richardson, M and Garnett, R, ‘Towards and Beyond the World Trade Organization: Protectionism or Cultural an Australian Private International Law of Cross-Border Policy?’ (2006) 13 International Journal of Cultural Communications Disputes’ (2006) 11 Media and Arts Property 129–160 Law Review 331–340 Voon, T, ‘To Uphold, Modify or Reverse? How the WTO Sarakis, M, ‘‘Less is More’: Providing for Waiver of Appellate Body Treats Panel Reports’ (2006) 7 Journal Subrogation Rights in Contract Works Insurance Policies’ of World Investment & Trade 507–518 (2006) 17 Insurance Law Journal 237–255 Voon, T, ‘UNESCO and the WTO: A Clash of Cultures?’ Saunders, C, ‘The Use and Misuse of Comparative (2006) 55 International and Comparative Law Quarterly Constitutional Law’ (2006) 13 Indiana Journal of Global 635–652 Legal Studies 37–76 Voon, T and Yanovich, A, ‘The Facts Aside: The Limitation Sellenger, B, ‘Chasing the Golden Goose: A Legal of World Trade Organization Appeals to Issues of Law’ Approach to Sports Accessing Gambling Revenue’ (2006) (2006) 40 Journal of World Trade 239–257 34 Australian Business Law Review 7–27
72 Faculty of Law Research Report 2006 Published research
Waugh, J, ‘Appointing the Governor-General: The Case Davies, M, ‘Neilson v Overseas Projects Corporation of of William McKell’ (2006) 17 Public Law Review 49–59 Victoria Ltd: Renvoi and Presumptions about Foreign Law’ (2006) 30 Melbourne University Law Review 244–268 Waugh, J, ‘Government Control of Royal Assent in Victoria’ (2006) 8 Constitutional Law and Policy Review Evans, C and Thomas, C, ‘Church-State Relations in 69–74 the European Court of Human Rights’ (2006) 3 Brigham Young University Law Review 699–725 Waugh, J, ‘The Brummagem Coup: The Start of Self- Government in Victoria’ (2006) 77 Victorian Historical Howe, J, ‘Book Review: Simon Deakin and Journal 143–161 Frank Wilkinson – The Law of the Labour Market: Industrialization, Employment, and Legal Evolution’ (2006) Weatherall, K, ‘Can Substantive Law Harmonisation and 48 Journal of Industrial Relations 280–282 Technology Fix Conflicts Problems?’ (2006) 11 Media and Arts Law Review 393–417 Lindsey, T, ‘Muddling Through: Indonesia’s Brave Experiment in Reinventing its Legal System’ (2006) Witting, C, ‘Breach of the Non-Delegable Duty: 87 Inside Indonesia 4–7 Defending Limited Strict Liability in Tort’ (2006) 29 University of New South Wales Law Journal 33–30 Lindsey, T, ‘Tribute-Australia’s Asian Law Pioneer: Professor Malcolm D H Smith, 21 August 1945–22 Yanovich, A and Voon, T, ‘Completing the Analysis in June 2006’ (2006) 30 Melbourne University Law Review WTO Appeals: The Practice and its Limitations’ (2006) 9 297–299 Journal of International Economic Law 933–950 Orford, A, ‘A Journal of the Voyage from Apology Other Journal Contributions to Utopia’ (2006) 7 German Law Journal 993–1010 Alfitri, ‘The Law of Zakat Management and Non- Orford, A, ‘Human Rights After Faith’ (2006) 7 Government Zakat Collectors in Indonesia’ (2006) 8 The Melbourne Journal of International Law 1–12 The International Journal of Not-for-Profit Law 55–64 Orford, A, ‘Book Review: The Fluid State’ (2006) 7 Ali, P, ‘Lender Liability by J. O’Donovan’ (2006) 21 Journal The Melbourne Journal of International Law 425–436 of International Banking Law and Regulation 607–608 Oswald, B, ‘Roles and Challenges for Operations Ali, P, ‘Project Finance by G. Vinter’ (2006) 21 Journal of Lawyers’ (2006) The Thai JAG Journal 164–191 International Banking Law and Regulation 429–430 Otto, D, ‘A Sign of ‘Weakness’? Disrupting Gender Anderson, K and Ramsay, I, ‘Union Shareholder Activism’ Certainties in the Implementation of Security Council (2006) 13 Australian Corporate News 1–5 Resolution 1325’ (2006) 1 Michigan Journal of Gender Beaton-Wells, C, ‘Do Judges Buy Chocolate and Does It and Law 113–175 Matter?’ (2006) 14 Trade Practices Law Journal 228–233 Richardson, M, ‘Book Review: Media Freedom under the Bell, M, ‘Scaling the Peak: The Prevention Principle in Human Rights Act, by H Fenwick and G Phillipson’ (2006) Australian Construction Contracting’ (2006) 3 International 11 Media and Arts Law Review 458–459 Construction Law Review 318–354 Shi, C, ‘Competition in China’s Securities Market: Reform Bell, M, Evans, P, Kirsch, H, Britton, P, Frilet, M, Chan, E, of Current Regulatory System’ (2006) 3 Loyola University Chao-Duivis, M, Auchie, D, Pillay, M and Sklar, S, Chicago International Law Review 213–231 ‘Construction Law Graduate Studies: Around the World Stewart, M, ‘Venture Capital Tax Reform in New Zealand in 80 Subjects’ (2006) 1 Construction Law International and Australia (Part 1)’ (2006) 17 Journal of International 19–25 Taxation 40–55 Christie, A, Davidson, J and Rotstein, F, ‘Canada’s Stewart, M, ‘Venture Capital Tax Reform in Australia and Private Copying Levy – Does It Comply with Canada’s New Zealand (Part 2)’ (2006) 17 Journal of International International Treaty Obligations?’ (2006) 20 Intellectual Taxation 42–54 Property Journal 111–134
Published Research 73 Published research
Tehan, M, ‘Book Review: Heritage Law in Australia’ Dent, C, Jensen, P, Waller, S and Webster,E, Research (2006) 29 University of New South Wales Law Journal Use of Patented Knowledge: A Review, Report No 2006/2 355–361 for OECD Directorate for Science, Technology and Industry (STI), Paris (2006) Weatherall, K, ‘Case Comment: Infringement of Copyright in Television Broadcast – What Constitutes Howe, J and Landau, I, ‘Light Touch’ Labour Regulation Substantial Portion of Original Broadcast – ‘The Panel” by State Governments in Australia: A Preliminary (2006) 37 IIC – International Review of Intellectual Property Assessment, Report No 40, Centre for Employment and Competition Law 356–357 and Labour Relations, University of Melbourne, Melbourne (2006) Conference Papers Kenyon, A and Liberman, J, Controlling Cross-Border Godden, L, ‘Re-Imagining the Social Contract: Tobacco Advertising, Promotion and Sponsorship Agreement-making with Indigenous and Local Peoples’, – Implementing the FCTC, Centre for Media and Transforming Institutions: Governments, NGO’s and Communications Law, University of Melbourne, Communities in Partnership Conference, University of Melbourne (2006) Melbourne, Melbourne, 2006 Ramsay, I and Lew, N, Corporate Law Reform and Lambiris, M, ‘A Methodology for Providing Individualised Delisting in Australia, Centre for Corporate Law and Computer-Generated Feedback to Students’, Proceedings Securities Regulation, University of Melbourne, of the 1st International Conference of Virtual Learning, Melbourne (2006) Bucharest, 2006 Rhoades, H, Sanson, A, Astor, H and Kaspiew, R, Otomo, Y, ‘The Southern Bluefin Tuna Case: A ‘Highly Working on their Relationships: A Study of Inter- Technical, Highly Uncertain’ Future for Environmental Professional Practices in a Changing Family Law System, Law?’, Biodiversity Summit 2006 Proceedings, Hobart, University of Melbourne, Melbourne (2006) 2006 Rider, C, Hong, X, O’Connell, A, Stewart, M and Otto, D, ‘The Power of Indicators to Shape Women’s Herring, M, Taxation Problems in the Commercialisation of Property Rights: Taking a Human Rights Approach’, Intellectual Property, Report No 01/06, Intellectual Property Development Bulletin, Canberra, 2006 Research Institute of Australia, University of Melbourne, Stewart, M, ‘Capital Allowances: A Successful Reform?’ Melbourne (2006) Australian Tax Research Foundation, Business Tax Reform, Sharpe, M and Parker, C, The ACCC Enforcement Sydney, 2006 and Compliance Project: Assessment of the Impact of Stewart, M, ‘A Conceptual Analysis of Consultation in Tax ACCC Regulatory Enforcement Action in Unconscionable Reform’ Australian Tax Research Foundation Conference, Conduct Cases, Centre for Corporate Law and Securities Executing the Income Tax, Sydney, 2006 Regulation, University of Melbourne, Melbourne (2006) Stewart, M, ‘Governance and Tax Reform’, International Stewart, M, Same-Sex: Same Entitlements: A Submission Network for Tax Research Conference on Tax and to the Human Rights and Equal Opportunity Commission, Development, University of Michigan School of Law, 2006 Australian Human Rights and Equal Opportunity Commission, Sydney (2006) Stewart, M and Walker, K, ‘Restricting the Legislative Power to Tax in Australia’ 17th Congress of the Reference Works International Academy of Comparative Law, The Christie, A and Gare, S, Blackstone’s Statutes on Netherlands, 2006 Intellectual Property (8th Edition) (2006) Oxford University Press, United Kingdom Reports / Working Papers Barnes, A, Josev, J, Lenne, J, Marshall, S, Mitchell, R, Computer Software Products Ramsay, I and Rider, C, Employee Share Ownership Lambiris, M, The Law of Agency, Australian Law Schemes: Two Case Studies, Centre for Corporate Law Courseware, Parkville (2006) and Securities Regulation, University of Melbourne, Melbourne (2006)
74 Faculty of Law Research Report 2006 publishedfaculty edited research Journals and newsletters
Journals and Newsletters 75 faculty edited Journals and newsletters
Refereed Journals Each issue of the Journal typically contains two or three articles, together with several casenotes and short The Australian Journal of Asian Law ‘comments’ in specialist sections (including company law, The Australian Journal of Asian Law (Asian Law) is a directors’ duties and corporate governance, takeovers and forum for debate for scholars and professionals concerned public securities, corporate insolvency, corporate finance, with the laws and legal cultures of Asia. It aims for securities industry and managed investments, accounting, recognition as a leading medium for legal ideas in a region current developments—legal and administrative, and characterised by rapid growth and social change. overseas notes for six jurisdictions). Students are Asian Law publishes multi-disciplinary, historical and encouraged to submit casenotes and comments for the contemporary research and fieldwork in English, in the specialist sections. Article-length pieces from students will original language or in translation. In the Law School, it also be published if they are of particularly high quality. is edited by Professor Tim Lindsey, Director of the Asian Media & Arts Law Review Law Centre and Ms Amanda Whiting, Associate Director (Malaysia). The Media & Arts Law Review (MALR) is the only Australian-based refereed journal in the fields of media and All contributions are peer-reviewed by two referees. arts law. The Review is published quarterly and examines The journal’s advisory board includes leading Asian law areas of media and arts law, including: Communications, scholars in a range of disciplines from Asia, Australia, Contempt, Copyright, Cultural Heritage, Defamation, Europe and America. Asian Law publishes one special Digitisation, Entertainment, Free Speech, Intellectual thematic edition every year, the most recent being devoted Property, Journalism, Privacy and the Public Interest. to Islamic law (syari’ah). The Review has a distinguished Editorial Board and Correspondence should be forwarded to: publishes independently refereed articles, from Australian The Editors and international authors, as well as conference reports The Australian Journal of Asian Law and book reviews. It also includes regular update reports C/- Asian Law Centre about media and arts law developments from a team Faculty of Law of international Contributing Editors. The updates offer The University of Melbourne VIC 3010 a snapshot of matters such as case law, legislation, law Australia reform, international conventions, and changes in industry Telephone: + 61 3 8344 6847 self-regulation. Reports include the US, Canada, the UK, Fax: + 61 3 8344 4546 South Africa, Korea, Singapore, the European Union, New Email: [email protected] Zealand and Australia. Associate Professor Andrew Kenyon edits the Review, and its publisher is LexisNexis. Company and Securities Law Journal Content from 2006 onward is available internationally Company and Securities Law Journal, whose editor is in digital full text, from publisher LexisNexis, as well Professor Geof Stapledon and general editor is Professor as in paper form. Earlier content is available on the Robert Baxt (Professorial Associate of the University MALR website. of Melbourne and a Partner at Freehills), commenced publication by the Law Book Company in 1983. Published Suitable student contributions are welcome, and the eight times a year, it is the leading company law journal Editor is happy to discuss possible contributions or other in Australasia. Professor Ian Ramsay is a member of the assistance with the Review. Editorial Board of the Journal. Website: http://www.law.unimelb.edu.au/malr.
76 Faculty of Law Research Report 2006 faculty edited Journals and newsletters
Melbourne Journal of International Law Melbourne University Law Review Melbourne Journal of International Law (MJIL) covers The Melbourne University Law Review (MULR) is one of issue of public and private international law. It is a biannual Australia’s premier generalist law journals. Submissions publication that seeks to address issues of academic and to the Review are subject to independent, anonymous commercial interest to Australia and the Asia-Pacific area. peer reviews prior to acceptance for publication. The MJIL is a fully peer-reviewed/refereed, student-edited Review is published three times a year (in April, August international law journal. and December) and is managed by an Editorial Board Throughout 2004, there has been an increased comprising students of the Law School at the University awareness of, and interest in, international law across of Melbourne. the wider community. This climate has enhanced The Review publishes articles on all areas of law, with an the opportunity for MJIL to contribute to debate and emphasis on Australian domestic law, international law discussion on a wide range of legal issues. MJIL and comparative law. It also publishes case notes, book publishes articles on a broad range of international law reviews, review essays and research notes. The Review’s topics. The most recent edition includes articles and Critique and Comment section features shorter comment- commentaries on issues of the privatisation of human style pieces, along with full-length articles that employ rights in international law, international labour law, explicitly theoretical approaches to the law. international criminal law, international intellectual property The Review also publishes the Australian Guide to Legal law, and the interaction between trade and competition Citation (AGLC), which seeks to provide Australia with before the World Trade Organization. a uniform system of legal citation. The AGLC outlines Editions are distributed to a wide range of readers established citation practices and indicates preferred and organisations, including commercial enterprises, approaches where no particular approach has been widely international organisations, law libraries and law students. accepted. The AGLC has been adopted by a number of MJIL is distributed both online and in hardcopy, with a Australia’s leading law journals and is prescribed in some readership spanning locations as diverse as Hong Kong, Australian law schools as the house style guide. The first the United States, Sri Lanka, Brazil and South Africa. edition of the AGLC was published in 1998, a second Articles, case notes, commentaries, practice notes, book edition was published in early 2002 and, due to popular reviews and summaries of recent legal developments are demand, the AGLC was reprinted in 2003 and 2004. all encouraged by the Editors. Any enquiries regarding the Review or the AGLC should MJIL can be contacted via telephone on be directed to: +61 3 8344 7913 or email [email protected]. Vegjie Cari, Stephane Chu and Benjamin Kiely (Editors) You are invited to peruse their website at: Melbourne University Law Review http://mjil.law.unimelb.edu.au. Melbourne Law School The University of Melbourne Melbourne Legal Studies Carlton Victoria 3010 Australia Melbourne Legal Studies is a digital journal distributed Telephone: + 61 3 8344 6593 through the United States based Legal Scholarship Facsimile: + 61 3 9347 8087 Network (LSN). The journal publishes research by Email: [email protected] Melbourne Law School academics, including working Website: http://mulr.law.unimelb.edu.au papers, articles accepted for publication, and book chapters. It helps bring Melbourne Law School research to the attention of an international academic audience. The journal is coordinated/edited by Associate Professor Andrew Kenyon [email protected]. Website: http://www.ssrn.com/link/melbourne-public-law. html.
Journals and Newsletters 77 faculty edited Journals and newsletters
Public Law Review Newsletters The quarterly journal Public Law Review is edited by Corporate Law Bulletin Professor Cheryl Saunders of the University of Melbourne and Professor Michael Taggart of the University of The Centre for Corporate Law and Securities Regulation Auckland New Zealand. Associate editors are Fiona (CCLSR) publishes, in association with the publisher Wheeler from the Australian National University and LAWLEX, the monthly Corporate Law Bulletin. The editor Janet Maclean from the University of Auckland. The is Professor Ian Ramsay. The Bulletin is distributed by email, and outlines recent Australian and international Review is a refereed journal, with an international advisory board. It is produced under the auspices of the Centre for corporate law and corporate governance developments, Comparative Constitutional Studies (CCCS), and published including statutory amendments, court judgements, and new Policy Statements made by the Australian Securities by Thompson, Australia. A unique feature of the Review is its comprehensive coverage of public law developments and Investments Commission. Some previous issues are in all Australian and New Zealand jurisdictions. An published on the website of the Centre for Corporate Law undergraduate law student is employed each year at and Securities Regulation: CCCS to assist with the Review, including the compilation Website: http://cclsr.law.unimelb.edu.au. of recent developments. Correspondence should be forwarded to: Professor Cheryl Saunders Public Law Review C/- The Centre for Comparative Constitutional Studies Melbourne Law School The University of Melbourne Victoria 3010 Australia Telephone: + 613 8344 41011 Fax: + 613 8344 1013 Email: [email protected] Torts Law Journal Professor Harold Luntz is the General Editor of the Torts Law Journal, which is published by LexisNexis Butterworths. The Journal commenced publication in 1993, and three issues are published each year. The Journal includes casenotes, articles, comments on legislation and law reform proposals, and book reviews on topics related to torts and alternative compensation schemes. The Journal aims to be of interest to both academics and practitioners; students may also find it useful. Contributions of sufficient scholarly quality from students are welcomed and have been published in the past.
78 Faculty of Law Research Report 2006 journal affiliations
Journal Affiliations 79 journal affiliations
Journal: Across the Board Member: Ian Ramsay Publisher: CCH Australia Ltd Position: Member of the Editorial Board Place: Sydney, Australia
Journal: Art, Antiquity and Law Member: Andrew Kenyon Publisher: Institute of Art and Law Position: Assistant Editor, Aboriginal Culture and Place: London, UK Indigenous Peoples
Journal: Australasian Journal of Philosophy Member: Natalie Stoljar Publisher: Oxford University Press Position: Member of Editorial Board Place: Oxford, UK
Journal: Australasian Parliamentary Review Member: Cheryl Saunders Publisher: Australasian Study of Parliament Group Position: Member of Editorial Board Place: Sydney, Australia
Journal: The Australian Accounting Review Member: Ian Ramsay Publisher: The Australian Society of Certified Practising Position: Member of Editorial Board Accountants Place: Melbourne, Australia
Journal: Australian Corporations & Member: Ian Ramsay Securities Law Reporter Position: Consultant Editor Publisher: CCH Australia Ltd Place: Sydney Australia
Journal: Australian and New Zealand Journal of Law Member: Ian Ramsay and Education Position: Member of Editorial Board Publisher: The Australian and New Zealand Education Law Association Place: Brisbane, Australia
Journal: Australian Feminist Law Journal Member: Jenny Morgan Publisher: Australian Feminist Law Foundation Position: Member of the Advisory Board Place: Melbourne, Australia
Journal: Australian Journal of Family Law Member: Belinda Fehlberg Publisher: Butterworths Position: Member of Editorial Board Place: Sydney, Australia
Journal: Australian Journal of Labour Law Member: Colin Fenwick Publisher: LexisNexis Butterworths Position: Senior Associate Editor Place: Sydney, Australia Members: Anna Chapman, Breen Creighton, Richard Mitchell Position: Editorial Committee Members
80 Faculty of Law Research Report 2006 journal affiliations
Journal: Australian Yearbook of Members: Dianne Otto, Kristen Walker International Law Position: Members of Editorial Board Publisher: Centre for International and Public Law, Australian National University Place: Canberra, Australia
Journal: The Australian Journal of Asian Law Members: Tim Lindsey, Amanda Whiting Publisher: Federation Press Position: Editors Place: Sydney, Australia Members: Sarah Biddulph, Sean Cooney, Cheryl Saunders Position: Members of Advisory Committee
Journal: Canadian Journal of Women Member: Jenny Morgan and the Law Position: Australian Correspondent Publisher: University of Toronto Press Place: Toronto, Canada
Journal: Company and Securities Law Journal Member: Geof Stapledon Publisher: LBC Information Services Position: Editor, Section Editor (Directors’ Duties Place: Sydney, Australia and Corporate Governance) Member: Paul Ali Position: Section Editor (Corporate Finance) Member: Ann O’Connell Position: Section Editor (Securities Industry and Member: Ian Ramsay Position: Member of the Editorial Board
Journal: Construction Law International Member: Matthew Bell Publisher: International Bar Association Position: Co-Editor Place: London, United Kingdom Member: Doug Jones AM Position: Member of Editorial Board
Journal: Corporate Law Bulletin Member: Ian Ramsay Publisher: LAWLEX Position: Editor Place: Melbourne, Australia
Journal: Corporate Ownership and Control Member: Geof Stapledon Publisher: Ukrainian Academy of Banking Position: Member of the Editorial Board Place: Sumy, Ukraine
Journal: Deakin Law Review Member: Peter Rush Publisher: Deakin University Position: Member of the Editorial Board Place: Melbourne, Australia
Journal: Doing Business in Asia Member: Tim Lindsey Publisher: CCH Position: Contributing Editor and Member of the Place: Singapore Advisory Board
Journal Affiliations 81 journal affiliations
Journal: Employment Law in Asia Member: Tim Lindsey Publisher: CCH Position: Member of the Editorial Advisory Board Place: Singapore
Journal: Fibreculture Journal Member: Andrew Kenyon Publisher: Fibreculture Publications Position: Member of the Editorial Board Place: Sydney, Australia
Journal: Global Change, Peace and Security Member: Tim McCormack Publisher: The Institute for Peace Research, Position: Member of the Editorial Committee La Trobe University Place: Melbourne, Australia
Journal: Governance Member: Geof Stapledon Publisher: Governance Publishing and Information Position: Asia Pacific Consulting Editor and Services Ltd Member of the Editorial Board Place: Somerset, UK
Journal: Griffith Law Review Members: Sir Zelman Cowen, Peter Rush Publisher: Griffith Law Review Association Position: Members of the Editorial Board Place: Brisbane, Australia
Journal: I.CON Member: Cheryl Saunders Publisher: Oxford University Press Position: Member of the Editorial Board and Symposium Place: Oxford, UK Joint Editor Member: Simon Evans Position: Developments Correspondent, Australia and New Zealand
Journal: IIC: International Review of Industrial Member: Kimberlee Weatherall Property and Copyright Law Position: Country Report Publisher: Weinheim/Bergstr., VCH Verlagsgesellschaft mbH Place: Munich, Germany
Journal: International Construction Law Review Member: Doug Jones AM Publisher: Informa Position: Co-Editor in Chief Place: London, UK
Journal: International Criminal Law Review Member: Tim McCormack Publisher: Brill Publishers Position: Member of the Editorial Board Place: Leiden, The Netherlands
Journal: International Journal of Comparative Member: Colin Fenwick Labour Law and Industrial Relations Position: Member of the Editorial Board Publisher: Kluwer Law International Place: The Hague, The Netherlands
82 Faculty of Law Research Report 2006 journal affiliations
Journal: International Journal of Information Member: Andrew Christie Policy and Law Position: Member of the Editorial and Advisory Board Publisher: Inderscience Place: Geneva, Switzerland
Journal: International Securities Regulation: Member: Ian Ramsay Pacific Rim Position: Consultant Editor Publisher: Oceana Publications Place: New York, USA
Journal: International Union Rights Member: Colin Fenwick Publisher: International Centre for Trade Union Rights Position: Member of the Editorial Board Place: London, UK
Journal: Intellectual Property Forum Member: Sam Ricketson Publisher: Intellectual Property Society of Australia and Position: Member of the Editorial Board New Zealand Place: Perth, Australia
Journal: Journal of Australasian Tax Member: Miranda Stewart Teachers Association Position: Member of the Editorial Board Publisher: Australasian Tax Teachers Association Place: Internet
Journal: Journal of Conflict and Security Law Member: Tim McCormack Publisher: Oxford University Press Position: Member of the Editorial Board Place: Oxford, UK
Journal: Journal of Corporate Law Studies Member: Geof Stapledon Publisher: Hart Publishing Position: Member of the Editorial Board Place: London, UK
Journal: Journal of Medical Ethics Member: Loane Skene Publisher: BMJ Publishing Group Position: Member of the Editorial Board Place: London, UK
Journal: Jurnal Hukum Humaniter Member: Tim McCormack (Journal of Humanitarian Law) Position: Honorary Editor Publisher: Centre for the Study of International Humanitarian Law Place: Trisakti University Law School, Jakarta
Journal: Law and Critique Member: Peter Rush Publisher: Springer Position: Member of the Editorial Board Place: Dordrecht, The Netherlands
Journal Affiliations 83 journal affiliations
Journal: Law and Society Review Member: Christine Parker Publisher: Blackwell Publishing Position: Member of the Editorial Advisory Board Place: Denver, USA
Journal: Law in Context Member: Miranda Stewart Publisher: Federation Press Position: Guest Editor Place: Sydney, Australia
Journal: Macquarie Journal of Business Law Member: Ian Ramsay Publisher: Macquarie University Position: Member of the Editorial Board Place: New South Wales, Australia
Journal: Media and Arts Law Review Member: Andrew Kenyon Publisher: LexisNexis Position: Editor Place: Sydney, Australia Member: Megan Richardson, Sam Ricketson Position: Member of the Editorial Board
Journal: Melbourne Journal of International Law Members: David Brennan, Martin Davies, Publisher: The University of Melbourne Alison Duxbury, Colin Fenwick, Richard Place: Melbourne, Australia Garnett, Geoffrey Lindell, Tim McCormack, Ian Malkin, Anne Orford, Bruce Oswald, Student members of the Journal are responsible Dianne Otto, Sundhya Pahuja, Jacqueline for all editorial work Peel, Gillian Triggs, Kristen Walker Position: Members of the Advisory Board
Journal: Melbourne Legal Studies Member: Andrew Kenyon Publisher: Social Sciences Research Network, USA Position: Editor Place: Internet
Journal: Melbourne University Law Review Members: David Brennan, Jenny Morgan, Ian Malkin Publisher: The University of Melbourne Position: Faculty Advisors Place: Melbourne, Australia
Student members of the Journal are responsible for all editorial work
Journal: Public Law Review Member: Cheryl Saunders Publisher: Lawbook Company Position: Editor Place: North Ryde, Australia Member: Michael Crommelin Position: Member of the Board of Advisors
Journal: Publius Member: Cheryl Saunders Publisher: Centre for Study of Federalism Position: Member of the Advisory Council Place: Pennsylvania, USA
Journal: Regulatory Governance Member: Christine Parker Publisher: Blackwells Position: Member of the Editorial Advisory Board Place: Melbourne, Australia
84 Faculty of Law Research Report 2006 journal affiliations
Journal: Religion and Human Rights: Member: Carolyn Evans An International Journal Position: Member of the Advisory Board Publisher: Martinus Nijhoff Place: The Netherlands
Journal: Revenue Law Journal Member: Michael Kobetsky Publisher: Bond University Position: Member of the Advisory Board Place: Gold Coast, Australia
Journal: Review of Constitutional Studies Member: Cheryl Saunders Publisher: University of Alberta Position: Member of the International Advisory Place: Edmonton, Canada Board
Journal: Revista Catalana de Dret Public Member: Cheryl Saunders Publisher: Institut d’Estudis Autonòmics Position: Member of Scientific Council Place: Barcelona
Journal: Singapore Academy of Law Journal Members: Michael Crommelin, Ian Ramsay Publisher: Singapore Academy of Law Position: Members of the International Referees Place: Singapore
Journal: The New Zealand Armed Forces Law Member: Tim McCormack Review Position: Consulting Editor Publisher: Armed Forces Law Association of New Zealand Place: Christchurch, New Zealand
Journal: The Third World and Member: Dianne Otto International Law Position: Member of the International Advisory Publisher: Kluwer Law International Board Place: The Hague, The Netherlands
Journal: Third World Legal Studies Member: Dianne Otto Publisher: International Third World Legal Studies Position: Member of the Advisory Board Association and the Valparaiso University School of Law Place: Indiana, USA
Journal: Torts Law Journal Member: Harold Luntz Publisher: LexisNexis Butterworths Position: Editor Place: Sydney, Australia Member: Hayden Opie Position: Member of the Editorial Board
Journal: Tort Law Review Member: Michael Tilbury Publisher: LBC Information Services Position: Member of the Editorial Board Place: Sydney, Australia
Journal Affiliations 85 Faculty research workshop series
Journal: Trade Practices Law Journal Member: Tim Lindsey Publisher: Lawbook Company Position: Editor, Report from Asia Place: Pyrmont, Australia
Journal: Yearbook of International Humanitarian Member: Tim McCormack Law Position: Editor in Chief Publisher: TMC Asser Instituut Press Place: The Hague, The Netherlands
86 Faculty of Law Research Report 2006 Faculty research workshop series
27 February 2006 Professor Abbe Smith (Georgetown University Law Center) ‘Defending the Unpopular Down Under, an exploration of the ethics and culture of Australian criminal defence, prisoners’ rights, and human rights lawyers’
6 March 2006 Professor Susan Boyd and Professor Claire Young (University of British Columbia) ‘Losing the Feminist Voice? Debates on the Legal Recognition of Same Sex Partnerships in Canada’
13 March 2006 John Tobin ‘Research, Writing and Teaching in Rights: A Kid’s Perspective’
20 March 2006 John Waugh ‘The Troubles: The Law School in the 1980s’
27 March 2006 Professor Jonathan Griffiths (Queen Mary – University of London) ‘Comparative Advertising and Copyright Law in Europe’
3 April 2006 Dr Vanessa May (University of Manchester) ‘Residence and Contact Disputes in Court: Parental Contest vs Children’s Best Interests?’
5 April 2006 Professor Desmond Manderson (McGill University – Montreal) ‘Café La[w]tte: Habit and Performance in the Study of Law’
10 April 2006 Associate Professor Kristen Walker ‘The Constitutional Validity of Acting Judges at State Level’
24 April 2006 Associate Professor Beth Gaze ‘The Racial Discrimination Act and the Elimination of Racial Discrimination’
1 May 2006 Professor Hilary Charlesworth ‘Legal Research and the ARC’
8 May 2006 Professor Camille Cameron and Jonathan Liberman (Cancer Council) ‘Litigation and Liability as Regulation to Reduce Tobacco Related Harm’
15 May 2006 Joo-Cheong Tham ‘Political Finance in Australia: A Skewed and Secret System?’
25 May 2006 Dr Philip Powell (University of Indiana) ‘The Optimal Geography of Property Rights in a Developing Country of Tribal Communities’
24 July 2006 Associate Professor Di Otto ‘Making Sense of the UN’s Zero Tolerance of Sex in Peacekeeping Economies’
31 July 2006 Associate Professor Andrew Kenyon ‘Legal Doctrine and Empirical Research: An Example from Defamation Law and Practice’
Funded Research 87 Faculty research workshop series
8 August 2006 Professor David Feldman ‘The Drafting of Constitutions as a means of Nation (re-building): The Influence of Elsewhere’
14 August 2006 Colin Fenwick ‘Towards a Theory of Labour Regulation for Developing Economies’
21 August 2006 Amanda Whiting ‘Deference and Dissent: Women and Petitioning in the English Revolution, 1640–1660’
28 August 2006 Linda Haller ‘Finding a Place for Professional Discipline’
4 September 2006 Louise Adler (Melbourne University Press) ‘Book Publishing with MUP’
11 September 2006 Miranda Stewart ‘Political Legitimacy and the Globalization of Tax Policy’
2 October 2006 Dr Simon Evans ‘The Victorian Charter of Human Rights and Responsibilities: Meaningless Rhetoric or Effective Protection of Human Rights?’
9 October 2006 Dr Sarah Biddulph ‘The Rule of Law and Social Order in China: ‘Mass Incidents’ and the Failure of Justice’
16 October 2006 Professor Andrew Robertson ‘The Basis of the Remoteness Rule in Contract’
23 October 2006 Dr Katja Ziegler (Oxford University) ‘The Creeping Constitutionalisation of the European Union?’ ‘Market Freedoms and Social Dimensions of the Common Market: Evolution and Impulses from Union Citizenship and Human Rights’
88 Faculty of Law Research Report 2006 International research visitors scheme Student published research prize
International Research Visitors Scheme/Student Published Research Prize 89 international research visitors scheme
The International Research Visitors Scheme (IRVS) is designed to enhance collaborative work between international researchers and members of the Law School.
IRVS: Jonathan Griffiths Recipient: Senior Lecturer, Department of Law, Queen Mary, University of London Period of Visit: 27 March 2006 – 24 April 2006 Project Digital Communications, Copyright and Free Speech
This visit enabled Jonathan Griffiths to work with Associate Professor Andrew Kenyon.
IRVS: Dr Chen Duanhong Recipient: Associate Professor, Peking University, China Period of Visit: 26 July 2006 – 2 September 2006 Project: Evaluating the Practice of Administrative Review by the Guangdong Municipal Government
This visit enabled Dr Chen Duanhong to work with Dr Sarah Biddulph.
IRVS: Dr Gregor Noll Recipient: Associate Professor of International Law, Faculty of Law, University of Lund, Sweden Period of Visit: 19 – 27 November 2006 Project: Concerning True or False Penance: UNHCR Refugee Status Determinations and the Path to Reform
This visit enabled Dr Gregor Noll to work with Dr Jenny Beard.
90 Faculty of Law Research Report 2006 student published research prize
2006 Winners The Student Published Research Prize is awarded annually for outstanding pieces of writing by students of the University of Melbourne’s Law School. Two prizes are awarded, one to an undergraduate law student and the other to a postgraduate law student.
Undergraduate Chian Kee ‘Efficiency, Equity and Ethics: Examining the Policy behind Compulsory Licensing and Access to Medicines in Developing Countries’ (2006) 18 (1) Australian Intellectual Property Journal 39–62
Postgraduate Amir Kordvani ‘Hospitality, Politics of Mobility and the Movement of Natural Persons under the GATS’ (2006) 7 (1) Melbourne Journal of International Law 74–103
International Research Visitors Scheme/Student Published Research Prize 91 92 Faculty of Law Research Report 2006 academic staff
Academic Staff 93 academic staff
Head of Department, Dean and Zelman Australian Red Cross Professor of International Cowen Professor of Law Humanitarian Law Brian Michael Lake Crommelin Timothy Lloyd Hearnden McCormack, LLB Tas. BA Qld. LLB Qld. LLM Br.Col. PhD Br.Col. PhD Monash Barrister-at-Law Queensland and the High Court of Davies Collison Cave Professor of Intellectual Australia, Barrister and Solicitor Victoria and Papua New Property Guinea, Legal Practitioner Northern Territory Andrew Frederick Christie, BSc Melb. LLB Melb. LLM Lond. PhD Camb. Professors Barrister and Solicitor of the Supreme Court of Victoria Michael Bryan, MA Oxf. BCL Oxf. PhD Lond. and Solicitor of the Supreme Court of England and Wales, Camille Cameron, BA Saint Mary’s LLB New Br. Registered Trade Marks Attorney Australia . LLM Camb Harold Ford Professor of Commercial Law Belinda Louise Fehlberg, BA Melb. LLB Melb. DPhil Oxf. Ian Malcolm Ramsay, BA Macq. LLB Macq. LLM Harv. Barrister and Solicitor Victoria and the High Court of Solicitor of the Supreme Court New South Wales and the Australia High Court of Australia and Member of the New York Bar Richard Garnett, BA NSW LLB NSW LLM Harv. Professor of Asian Law Solicitor New South Wales, Barrister and Solicitor Victoria, Solicitor of the Supreme Court of England and Wales Timothy Charles Lindsey, BA Melb. BLitt Melb. LLB Melb. PhD Melb. Jennifer Jane Morgan, BA Syd. LLB NSW LLM Yale Barrister and Solicitor Victoria Barrister and Solicitor Victoria Anne Margaret Orford, BA Qld. LLB Qld. LLM Lond. Associate Professors and Readers PhD Adel. Michael Anthony Kriton Lambiris, LLB Lond. Solicitor of the Supreme Court of Queensland PhD Rhodes Staniforth Ricketson, BA Melb. LLB Melb. LLM Lond. Martin Nico Alphons Vranken, LicLaw Leuven LLD Lond. FASSA PhD Leuven LLM Yale Barrister and Solicitor of the Supreme Court Victoria and Solicitor of the Supreme Court New South Wales Associate Professors Cameron Rider, BA Melb. LLB Melb. Paul Ali, LLB Auck. MJur Auck. SJD Syd. Andrew John Robertson, LLB QIT LLM QUT PhD ANU Solicitor of the Supreme Court of New South Wales, Solicitor of the Supreme Court of Queensland and the Barrister and Solicitor of the High Court of New Zealand Supreme Court of England and Wales Manfred Paul Ellinghaus, LLB Melb. LLM Yale Cheryl Anne Saunders AO, BA Melb. LLB Melb. Barrister and Solicitor of the Supreme Court of Victoria PhD Melb. Beth Gaze, B Sc Monash LLB Monash LLM Berkeley Barrister Queensland (Personal Chair in Faculty of Law) Barrister and Solicitor of the Supreme Court of Victoria and Loane Skene, LLB Melb. LLM Monash the High Court of Australia Barrister and Solicitor Victoria, Barrister and Solicitor of the Lee Godden, GradDipEd Melb. BLegS Macqu. BA Melb. High Court of Australia MA Melb. PhD Griff. Geofrey Peter Stapledon, BEcon Adel. LLB Adel. Barrister and Solicitor Australian Capital Territory, Solicitor DPhil Oxf. Queensland Solicitor of the Supreme Court of South Australia and New Pamela Fay Hanrahan, BA Melb. LLB Melb. LLM Case South Wales Western Reserve University Gillian Triggs, LLB Melb. LLM Southern Methodist Barrister and Solicitor of the Supreme Court of Victoria University PhD Melb. Barrister and Solicitor Victoria
94 Faculty of Law Research Report 2006 academic staff
Andrew Thomas Kenyon, LLB Melb. LLM Lond. Sean Thomas Cooney, BA Melb. LLB Melb. LLM Melb. PhD Melb. LLM Col. JSD Col. Barrister and Solicitor of the Supreme Court of Victoria Barrister and Solicitor Victoria and the High Court of Ian Rael Malkin, BA Manit. LLB Manit. LLM Lond. Australia Barrister and Solicitor of the Queen’s Bench of Manitoba Alison Duxbury, BA Melb. LLB Melb. LLM Camb. Ann Margaret O’Connell, BA Melb. LLB Melb. Barrister and Solicitor of the Supreme Court of Victoria LLM Melb. Carolyn Evans, BA Melb. LLB Melb. DPhil Oxf. Barrister and Solicitor Victoria Barrister and Solicitor of the Supreme Court of Victoria Dianne Lynette Otto, BA Adel. LLB Melb. LLM Melb. Robert Charles Evans, LLM Lond. LLM Col. Inner Temple Barrister-at-Law, Barrister and Solicitor Sundhya Pahuja, BA Melb. LLB Melb. LLM Br.Col. Victoria Barrister and Solicitor of the Supreme Court of Victoria Simon Charles Evans, BSc Syd. LLB Syd. PhD Cant. Andrew James Palmer, BA Well. LLB Monash BCL Oxf. Barrister and Solicitor of the High Court of Australia, Barrister of the Supreme Court of Victoria Solicitor New South Wales Megan Lloyd Richardson, BA Well. LLB Well. LLM Yale Colin Fenwick, BA Melb. LLB Melb. LLM Melb. LLM Brussels LLM Virginia Barrister and Solicitor of the High Court of New Zealand Barrister and Solicitor Victoria Peter Rush, BA NSW LLB NSW MPhil Cant. PhD Edin. Michelle Foster, BComm UNSW. LLB UNSW LLM Michigan. SJD Michigan. Maureen Frances Tehan, LLB Monash BA Melb. LLM Melb. Jeremy Gans, LLB ANU BSc ANU MA Tor. PhD NSW Barrister and Solicitor Victoria, South Australia, Western Linda Haller Australia and the High Court of Australia, Legal Practitioner John Howe, BA Monash LLB Monash LLM Temple Northern Territory of Australia PhD Melb. Kristen Louise Walker, BSc Melb. LLB Melb. LLM Melb. Michael Kobetsky, BEcon USyd, LLB ANU, PhD Deakin LLM Col. Barrister and Solicitor Victoria Jürgen Kurtz, BA Melb. LLB Melb. LLM Melb. Christian Witting, BEc Monash. LLB Monash. SJD Melb. Wendy Larcombe Barrister and Solicitor of the High Court of Australia Janice Luck, LLB Tas. LLM Lond. David Alan Russell Wood, BA ANU LLB Melb. MA Melb. Barrister and Solicitor Victoria PhD Melb. Andrew Mitchell, LLB Melb. BComm Melb. LLM Harv. PhD Camb. Senior Lecturers Barrister and Solicitor of the Supreme Court of Victoria and Jenny Beard, BA ANU LLB ANU LLM Pub Intl L Lond Sch the High Court of Australia of Eco & Pol Sc. PhD Melb. Pip Nicholson, BA Melb. LLB Melb. LLM (Public Policy) Caron Beaton-Wells, LLB Melb. LLM Melb. PhD Melb. ANU PhD Melb Barrister and Solicitor of the Supreme Court of Victoria Hayden David Opie, BComm Melb. LLB Melb. LLM Tor. Sarah Biddulph, BA Syd. LLB Syd. PhD Melb. Barrister and Solicitor Victoria Barrister and Solicitor of the High Court of Australia, Bruce Oswald CSC, BBus RMIT LLB ANU LLM Lond. Solicitor New South Wales MA Kent David Brennan, BComm Melb. LLB Melb. PhD Melb. Barrister New South Wales Gary Cazalet, BA Monash LLB Monash Glenn Anthony Patmore, BA Monash LLB Monash LLM Queens Anna-Louise Margaret Chapman, BComm Melb. Barrister and Solicitor of the Supreme Court of Victoria LLB Melb. LLM Melb. Barrister and Solicitor Victoria
Academic Staff 95 academic staff
Jacqueline Peel, BSc Qld. LLB Qld. LLM NYU Enelia Jansen van Rensburg, BA Uni of Stellenbosch. Solicitor of the Supreme Court Queensland LLB Uni of Stellenbosch. LLM Uni. of Capetown Helen Rhoades, LLB Melb. LLM Melb. Sunita Jogarajan, BComm Melb. LLB Melb. Barrister and Solicitor Victoria Victor New, LLB Melb. BComm Melb. LLM Lond. Miranda Stewart, BSc Syd. LLB Syd Grad Dip ANU Barrister and Solicitor Victoria LLM NYU Lisa Koralia Sarmas, BA Melb. LLB Melb. LLM Melb. Barrister and Solicitor Victoria Barrister and Solicitor of the Supreme Court of Victoria Joo-Cheong Tham, LLB Melb. LLM Melb. Vanessa Stafford, LLB Griff. BBus Griff. John Tobin, BA Melb. BComm Melb. LLB Melb. Stacey Steele, BA Qld. MA Monash BL ML Melb. LLM Lond. Barrister and Solicitor of the Supreme Court of Victoria and Amanda Whiting, BA Melb. DipEd Melb. of the High Court of Australia GradDip Indonesia. LLB Melb. Tania Voon, BSc Melb. LLB Melb. Grad Dip Intl L Melb. ARC Queen Elizabeth II Fellow LLM Harv. PhD Camb. Barrister and Solicitor of the Supreme Court of Victoria and Natalie Stoljar, BA Syd. LLB Syd. PhD Princeton the High Court of Australia ARC Research Fellow John Charles Waugh, LLB Melb. BComm Melb. Christine Parker, BA Qld. LLB Qld. PhD ANU BA Melb. LLM Melb. MPhil Cant. Barrister and Solicitor Victoria ARC Postdoctoral Fellow Kimberlee Weatherall, BA Syd. LLB Syd. BCL Oxf. Ann Genovese, BA Adel LLB Adel PhD SUT LLM Yale Solicitor of the Supreme Court of New South Wales Research Fellows Lecturers Jason Bosland, BA Melb LLB Melb. Bronwyn Frances Bartal, BJuris Monash LLB Monash. Chris Dent, BA Murdoch LLB Murdoch PhD Murdoch DipEd SCVic DipCrim Melb. LLM Melb. Megan Donaldson Barrister and Solicitor Victoria Helen Durham, SJD Melb. Matthew Bell, BA . LLB . LLM . Melb Melb Melb Emily Hudson, BSc Melb. LLB Melb. Helen Louise Bird, BComm . LLB . Qld Qld Meredith Jones, BA Monash, LLB Monash, Barrister and Solicitor Victoria GradCertAppSc Swin, LLM Monash David Blumenthal, BA Melb. LLB Melb. PhD Melb. Ingrid Landau Arlen Duke, BComm . LLB . Melb Melb Shelley Marshall, BA Melb. LLB Melb. MSc Matthew Harding, BA Melb. LLB Melb. BCL Oxf. Development Studies LSC Michelle Herring, BComm Monash LLB Monash Brenda Masters, BA Adel. LLB Adel. Grad. Dip in Legal Barrister and Solicitor of the Supreme Court of Victoria Practice Law Society of South Australia Jacqueline Horan, BA Monash LLB Monash LLM Barrister and Solicitor South Australia Monash. PhD Melb. Fiona Rotstein, BA Melb. LLB Melb. Barrister and Solicitor of the High Court of Australia, Noamita Royan, BComm Melb. LLB Melb. Barrister and Solicitor of the Supreme Court of Victoria Robin Wright, LLB LaTrobe. MA(Women’s Studies) Jessica Howard, BA . LLB . Melb Melb Monash. BMus Melb.
96 Faculty of Law Research Report 2006 academic staff
Principal Fellows Geoffrey Lindell, LLB Adel. LLM Adel. George Beaton, MBBCH, PLD, MBA (Witwatersrand) Barrister and Solicitor South Australia Lt Colonel Michael Kelly AM, BA Macq. LLB Macq. John Lowe PhD NSW Harold Luntz, BA Witw. LLB Witw. BCL Oxf. LLD Melb. Sue MacCallum Barrister and Solicitor Victoria Robert Mathews OAM, BSc Monash MSc La Trobe Richard James Mitchell, LLB Melb. LLM Melb. MSc Lond. Senior Fellows Barrister and Solicitor Victoria Grania Sheehan Vivienne O’Connor Gaetano Tony Pagone QC, BA Monash DipEd Monash Honorary Staff LLB Monash LLM Camb. Emeritus Professors Charles Rickett, LLB Cant. BD Melbourne College of The Rt Honorable Sir Zelman Cowen, AK GCMG GCVO Divinity MA Oxf. MA Cant. PC QC MA DCL, Hon. LLD Oxf. Peter Sallmann, LLB Melb. MSAJ Washington Harold Ford AM, LLM Melb. SJD Harv. Hon LLD Melb MPhil Camb. Colin Howard, BA Melb. LLB Lond. LLM Lond. PhD Adel. Robin Lorimer Sharwood AM, BA Melb. LLB Melb. LLD Melb. LLM Berk. SJD Harv. Barrister and Solicitor David John Lanham, LLB Leeds BCL Oxf. Barrister-at-Law Lincoln’s Inn San-Hyun Song, LLB Seoul LLM Tulane The Rt Honourable Sir Ninian Stephen, KG AK GCMG Professorial Fellows GCVO KBE Ian Bailey SC Michael Tilbury, LLB Lond. BCL Oxf. Breen Creighton, LLB Belf. LLB Melb. PhD Cant. Barrister of the Supreme Court of New South Wales and Martin John Davies, BA Oxf. BCL Oxf. MA Oxf. Barrister of the High Court of Australia LLM Harv. Gillian Triggs, LLB Melb. LLM Southern Methodist The Honorable Sir Daryl Dawson, AC KBE CB University PhD Melb. LLB Melb. LLM Yale Barrister and Solicitor Victoria Tony Duggan, BA Melb. LLB Melb. LLM Tor. Brigadier Ian Westwood, LLB Syd. LLM JAG Army US John Farrar, LLB Lond. LLM Lond. LLD Lond. PhD Brist. Douglas Williamson RFD QC FAIM, LLB Melb. Barrister and Solicitor of the High Court of Australia QC Victoria, New South Wales, Western Australia, Tasmania, Australian Capital Territory and Northern The Honorable Justice Paul Finn, BA Qld LLB Qld Territory LLM Lond PhD Cantab Sarah Worthington Francis Gurry, LLB Melb. LLM Melb. PhD Cant. Blake Dawson Waldron Professorial Fellow Doug Jones AM, BA Qld. LLB Qld. LLM Qld. Sandford Delbridge Clark, LLB Adel. PhD Melb. James Lahore, BCL Oxf. LLB Melb. MA Oxf. LLM Penn. Barrister and Solicitor Victoria and South Australia LLD Melb. Solicitor of the Supreme Courts of Victoria, Australian Capital Territory, New South Wales and Western Australia Marcia Langton AM
Academic Staff 97 academic staff
External Staff Wael Hallaw, McGill University Senior Fellows (Graduate Program) Peter Hallett, Griffith Hack Paul Abbey, PricewaterhouseCoopers Legal Frances Hanks, formerly Senior Lecturer, Melbourne Law Adeno Addis, Tulane University School of Law School Owen Anderson, University of Oklahoma John Harrington, University of Liverpool Carol Andrades, Ryan Carlisle Thomas Fred Hawke, Clayton Utz Antony Anghie, University of Utah Ray Hind, Davies Collison Cave Graeme Austin, University of Arizona Michael Hines, Victorian Bar Joel Barolsky, Beaton Consulting Paul Hockridge, William Buck Duncan Baxter, Blake Dawson Waldron Tony Holland, Mallesons Stephen Jaques Andrew Bell, New South Wales Bar Dan Hunter, University of Pennsylvania David Bennett QC, Victoria Mark Kravitz, United States District Court for the District of Connecticut Joost Blom QC, University of British Columbia Patricia Lane, New South Wales Bar, National Native Title Douglas Branson, University of Pittsburgh Tribunal Andrew Broadfoot, Victorian Bar Pierre Legrand, Université Paris Sorbonne Patrick Broughan, Ernst & Young Rochelle Le Roux, University of Cape Town Eugénie Buckley, Australian Soccer Association Rodd Levy, Freehills Brian Burdekin, Raoul Wallenberg Institute Damien Lockie, Victorian Bar David Caudill, Washington and Lee University Robert Macdonald, Premiership Strategies International Karin Clark, Allen Arthur Robinson Alan Maclean, Freehills Hugh Corder, University of Cape Town Geoff Mansfield, Griffith Hack Braham Dabscheck, University of New South Wales Stephen Mayson, Nottingham Trent University Terence Daintith, University of Western Australia John McKenna, Freehills Jan Job de Vries Robbé, Dutch Development Bank FMO Joshua Meltzer, Department of Foreign Affairs and Trade John Digby QC, Victorian Bar Alexandra Merrett, Australian Competition and Consumer Lydia Dowse, Athlete Development Australia Commission Hassan el Menyawi, United Nations University for Peace Matthew Mitten, Marquette University Michael Flynn, Victorian Bar David Morgan, formerly Department of Foreign Affairs and Trade James Forrest, Mallesons Stephen Jaques Jim Murray, TT Legal Peter Fox, Victorian Bar Richard Naughton, PricewaterhouseCoopers Legal Martin Fry, Allens Arthur Robinson Graeme Neate, National Native Title Tribunal Malcolm Gammie QC, Leiden University Tim Neilson, Greenwoods & Freehills Jonathan Gill, Francis Abourizk Lightowlers Tonia Novitz, University of Bristol Peter Gillies, Pitcher Partners Justin Oakley, Monash University Erica Grundell, Department of Human Services Frank O’Loughlin, Victorian Bar Michael Hains, ABN AMRO Group Australia/NZ David Opperman, Freehills
98 Faculty of Law Research Report 2006 academic staff
Alan Peckham, Freehills Senior Fellows (The Melbourne JD) Gavin Phillipson, King’s College London Daniel Clough, Victorian Bar Angela Quintarelli, Freehills Albert Dinelli, High Court of Australia Moira Rayner, Moira Rayner & Associates Francois du Bois, University of Capetown Jonathon Redwood, Victorian Bar Ben Fitzpatrick, Victorian Bar Greg Reinhardt, Australian Institute of Judicial Matthew Groves, Victorian Bar Administration Paul Halley, Victorian Bar Warwick Rothnie, Victorian Bar Ed Heerey, Victorian Bar Peter Rozen, Victorian Bar Gail Hubble, Victorian Bar Des Ryan, Davies Collison Cave Charmaine Lye, Victorian Bar David Sandborg, City University of Hong Kong Gregory Lyons, Victorian Civil and Administrative Tribunal Fred Schenck, Webb Martin Fiona McKenzie, Blake Dawson Waldron Steven Schwarcz, Duke University Peter Morrissey, Victorian Bar John Sharkey, Deacons, Richard Niall, Victorian Bar Gerry Simpson, London School of Economics Bill Rimmer, Victorian Bar Karen Sinclair, Watermark patent and Trade Mark Michael Rush, Victorian Bar Attorneys Daniel Visser, University of Cape Town Rod Smolla, University of Richmond Paul Vout, Victorian Bar Allen Snyder, University of San Diego Malcolm Speed, International Cricket Council Ken Spence, Shaddick & Spence Trevor Stevens, Davies Collison Cave Andrew Stewart, Flinders University John Stonier, Licensing Consultant David Tadgell, Phillips Ormonde Fitzpatrick John Tasioulas, Corpus Christi College Nicolas P Terry, Saint Louis University School of Law Li-ann Thio, National University of Singapore Rachel Trindade, Consultant Michael Tuckfield, Clayton Utz JH Verkerke, University of Virginia David Webber, Davies Collison Cave Jon Webster, Allens Arthur Robinson Jane Winn, University of Washington Peter Winn, Office of the United States Attorney, Seattle Doug Young, Blake Dawson Waldron Ralph Zacklin, United Nations
Academic Staff 99 academic staff
Faculty Centres and Institutes
Asian Law Centre Director Professor Tim Lindsey
Asia Pacific Centre for Military Law Director Professor Tim McCormack
Centre for Comparative and Constitutional Studies Director Dr Simon Evans
Centre for Corporate Law and Securities Regulation Director Professor Ian Ramsay
Centre for Employment and Labour Relations Law Director Mr Colin Fenwick
Centre for Media and Communications Law Director Associate Professor Andrew Kenyon
Centre for Resources Energy & Environmental Law Director Professor Richard Garnett
Centre for the Study of Contemporary Islam Directors Professor Abdullah Saeed Professor Tim Lindsey
Institute for International Law and the Humanities Director Professor Anne Orford
Intellectual Property Research Institute of Australia Director Professor Andrew Christie
100 Faculty of Law Research Report 2006 research higher degreEs completed in 2006 and in progress
Research Degrees Completed in 2006 and In Progress 101 research higher degreEs completed in 2006
Doctor of Philosophy Doctor of Judicial Science Baird, R Muggleton, T Pursing Cooperative Regionalism for the Effective The International Crime of Aggression Management of Straddling Fish Stocks Supervisor: Tim McCormack Supervisor: Gillian Triggs Carrel, M Master of Laws by Thesis Australia’s Prosecution of Japanese War Criminals: Ip, E Stimuli and Constraints Global Corporate Governance in Hong Kong Supervisors: Tim McCormack and Peter Londey Supervisor: Paul Ali Chadien, F Corporate Criminal Accountability Supervisor: David Wood Douglas, H Legal Narratives of Indigenous Existence: Crime, Law, and History Supervisors: Peter Rush and Lee Godden Nguyen, Q The Social Structures of Contracts: A Case Study of the Vietnamese Market Supervisors: Tim Lindsey and Pip Nicholson Peel, J International Law and the Determination of Risk: Science, Uncertainty and the Role of Values Supervisor: Anne Orford Salim, A Islamising Indonesia Laws? Legal and Political Dissonance in Indonesian Shari’a, 1945–2005 Supervisor: Tim Lindsey Sutrisno, N The Effectiveness of Special and Differential Treatment Provisions for Developing Countries in the World Trade Organisation: Implementation in Practice, and Enforcement in the Dispute Settlement Supervisors: Gillian Triggs and Tim Lindsey Tewfik Mohammed, H Ethnic Federalism in Ethiopia: A Case Study Supervisor: Cheryl Saunders Tham, J The Legal Precariousness of Casual Employment: An Examination of the Legal Regulation of the Australian Labour Market pre–2006 Supervisor: Richard Mitchell
102 Faculty of Law Research Report 2006 research higher Degrees in progress
Includes theses under examination
Doctor of Philosophy Brophy, C The Law and Integrative Medicine: Legal Issues Arising Allan, S when Doctors Incorporate Complementary Medicine The Regulation of Science: Research on Human into Conventional Medical Practice Embroyos, Cloning and the Law Supervisors: Christine Parker, Harold Luntz, Vicki Kotsirilos Supervisors: Loane Skene and Christine Parker and Marie Pirotta Allen, D Butt, S Improving the Effectiveness of Australia’s Anti- Judicial Review in Indonesia: Between Civil Law and Discrimination Laws Accountability? A Study of Constitutional Court Decisions Supervisors: Beth Gaze and Jenny Morgan 2003–2005 Alneyadi, M Supervisor: Tim Lindsey A Look at the Law of Construction Contracts in the Carson, R United Arab Emirates Supervised Contact: A Study of current Trends and Supervisors: Tim Lindsey and Michael Bryan Emerging Tensions since the Introduction of the Family Bailey, S Law Reform Act 1995 (Cth) Toward a Mine-Free World: Civil Society, the Media Supervisors: Belinda Fehlberg, Jenny Morgan and and the Campaign to Ban Landmines Grania Sheehan Supervisor: Tim McCormack Charwat, N Baker, R Contesting Global Governance: A Critical Examination Recent Developments in Comparative Medical of Amicus Curiae Briefs in the World Trade Organisation’s Malpractice Law Dispute Settlement Body Supervisors: Richard Mitchell and Andrew Robinson Supervisor: Dianne Otto Becroft, R Chellew, J The Development of a Standard of Review in World Derivatives Law: Fine Tuning the Corporations Act’s Trade Organisation Disputes Derivative Definition Supervisors: Richard Garnett and Andrew Mitchell Supervisors: Andrew Robertson and Paul Ali Bird, H Chen, V Conciliatory Enforcement of Australian Company Law: Evidence of Child Abuse in Non-Jury Criminal Trials The Operation and Use of Enforceable Undertakings Supervisors: Camille Cameron and Andrew Palmer by ASIC, the Corporate Regulator Clarke, B Supervisor: Ian Ramsay Occupation, Resistance and Jus ad Bellum: When is Bird, J it Lawful to Forcibly Resist Foreign Occupation of a Body Technologies to Biotechnology: Race, Sex Sovereign State? and Sexuality Supervisors: Tim McCormack, Michael Kelly and Supervisor: Natalie Stoljar Michael Gillooly Boas, G Coleman, A The Milosevic Trial: Lessons for the Conduct of Complex The Role of the International Court of Justice and International Criminal Proceedings Self-Determination Supervisors: Tim McCormack and Carolyn Evans Supervisors: Tim McCormack and Tania Voon Colmenares, N International Jurisdiction and Amnesty Supervisor: Tim Lindsey and Tim McCormack
Research Degrees Completed in 2006 103 researchacademic staffhigher Degrees in progress
Includes theses under examination
Conidi, B Hammond, E Imposing International Criminal Law and the Individual Judicial Review for Substantive Unfairness: Prospects Victims of Mass Violence: Help or Hindrance? under Australian Constitution Supervisors: Tim McCormack, Helen Durham and Supervisor: Cheryl Saunders and Simon Evans Jennifer Balint Hanlon, F D’Souza, A The Law Officer, Guardian of the Rule of Law or Just John Locke and the Philosophy of Intellectual Property Another Politician? The Office of the Attorney-General Rights in Australia Supervisors: Robyn Eckersley and Andrew Christie Supervisor: Cheryl Saunders Duxbury, A Harijanti, S The Role of Human Rights and Democracy in Determining The Role and Function of the National Ombudsman the Participation of States in International Organisations Commission in Creating Good Governance in Indonesia Supervisor: Tim McCormack Supervisors: Cheryl Saunders and Tim Lindsey Elkman, S Harper, E The Philosophical Foundations of Intellectual Property Law (Re)constructing a Legal System in East Timor: Supervisors: Michael Bryan and Megan Richardson Challenges to Introducing International Legal Norms and Principles into Post-Conflict States under UN Finnin, S Administration How Prosecutors Shape International Criminal Law and Supervisor: Tim Lindsey Justice Supervisors: Tim McCormack and Helen Durham Henderson, I Targeting during Armed Conflict: A Legal Analysis Foerster, A Supervisor: Tim McCormack and Andrew Mitchell Towards an Ecologically Sustainable Allocation of Water Resources? An Analysis of Recent and Ongoing Water Howard, J Law Reform in NSW and Victoria, with Respect to their ‘To Deter and Deny’: International Law and Australia’s Capacity to Deliver Environmental Outcomes Interdiction of Asylum Seekers Supervisors: Lee Godden and David Farrier Supervisor: Tim McCormack Forrest, L Hudson, E Communicating Genetic Information to Family Members: Copyright Law and the Cultural Sector: Lessons for Practical, Ethical, Legal and Social Implications Australia from the United States and Canada Supervisors: Mary Anne Aitken, Mary Delatycki, Loane Supervisors: Andrew Kenyon and Andrew Christie Skene and Lisette Curnow Jayawickrama, S Gerber, P Engaging Communities in Land Use Change: Water Examining the Implementation of Article 29(1) of the Trading, Salinity and Regional Development Convention on the Rights of the Child Supervisors: Ruth Beilin and Lee Godden Supervisor: Dianne Otto Jocic, W Graydon, C The Jurisprudence of the High Court of Australia Domestic Violence in Timor-Leste: Is there a Place for Supervisors: David Wood and Simon Evans Indigenous Justice Systems? Kelly, C Supervisors: Tim Lindsey and Dianne Otto Is Australia in Violation of the International Human Right Griffin, L to Non-Discriminatory and Equitable Access to Health Rights-based Approaches to International Migration and Care Services of Aboriginal and Torres Strait Islanders?: Enhancement of Labour Migration Benefits for Sustainable Possibilities and Limitations of National and International Development in South-East Asia: A Case Study of Labour Legal Procedures Emigration from Indonesia Supervisor: Carolyn Evans Supervisors: Salim Lakha and Jenny Beard
104 Faculty of Law Research Report 2006 research higher Degrees in progress
Includes theses under examination
Kent, L Liu, G The Effectiveness of Justice and Reconciliation The Role of Equity in Trusts Law: The Legislation Initiatives in Timor Leste and Application of the Chinese Trust Code Supervisors: Jennifer Balint and Dianne Otto Supervisors: Michael Bryan and Sarah Biddulph Kingsley, J Mathews, R Sometimes it is a Painful Love: Terrorism, Law Reform The Negotiation of the Chemical Weapons Convention, and ‘Being Muslim’ and its Implications for Other Arms Control Regimes Supervisors: Tim Lindsey and Abdullah Saeed Supervisor: Tim McCormack Kirk, S McGlone, D The Inner Logic of Socialism: Private Ownership and The Role of the Defendant in Criminal Trials in Victoria, Liberal Irony particularly in Relation to Sex Offence and Terrorism Trials Supervisors: Lee Godden and Jenny Beard Supervisors: Peter Rush and Jeremy Gans Kordvani, A McDougall, C International Law, Economic Liberalization and the Prosecuting the Accumulated Evil of the Whole: Movement of Natural Persons Defining an ‘Act of Aggression’ for the Purposes of the Supervisor: Anne Orford Rome Statute of the International Criminal Court Supervisors: Tim McCormack and Stuart Kaye Kreltszheim, D Paper and Electrons, Property and Contract: Merrett, A New Payment Systems and the Law Assessments and Regulation of Market Power in Australia Supervisors: Michael Bryan and Paul Ali Supervisors: Geof Stapledon, Rhonda Smith and Rachel Trindade Lach, K The EU and the Contemporary Notion of State Sovereignty Mihalopoulos, A Supervisors: Anne Orford and Carolyn Evans The Granting of ‘Recognition Space’ to Indigenous Peoples and Ethnocultural Groups with a Particular Emphasis on Lavery, D the Concepts of ‘Self-Determination’ and ‘Legal Pluralism’ A Residuum of Sovereignty? Supervisors: Beth Gaze, Lisa Sarmas and Victor New Supervisors: Lee Godden and Maureen Tehan Millar, H Le Roy, K Standards for Effective Transitional Justice Decision- Democratic Participation in Constitution Making: Making: Lessons from South Africa and East Timor Emerging Best Practice Supervisors: Tim McCormack and Helen Durham Supervisor: Cheryl Saunders Muriu, D Lesh, M The Impact of International Economic Institutions on the Israel’s Policy of Targeted Killing and International Realisation of the Right to Health in Sub-Saharan Africa: Humanitarian Law The Case for Accountability Supervisors: Tim McCormack and Helen Durham Supervisors: Anne Orford and Jenny Beard Limon, C Murphy, A Genes, Biotechnology and Legal Imagings Effective Public Participation in Major Projects Supervisors: Anne Orford and Lee Godden Supervisors: Gillian Triggs and Lee Godden Lindsay, D Mussawir, E Establishing an Optimal Framework for Online Privacy Jurisdiction: The Expression and Representation of Law Supervisor: Sam Ricketson Supervisors: Peter Rush and Anne Orford Little, P Universal Jurisdiction for Multinational Corporations Supervisor: Carolyn Evans
Research Degrees in Progress 105 research higher Degrees in progress
Includes theses under examination
Nastevski, V Schlesinger, N The Enactment of War Crimes Legislation in Australia An Exploration of Extra-Legal Factors Influencing the without Offending the Prohibition on Retrospective Development of the Law of the International Criminal Legislation Tribunals for the Former Yugoslavia and Rwanda Supervisors: Tim McCormack and Michelle Foster Supervisors: Tim McCormack and Tim Marjoribanks Nielsen, J Sheehan, K An Intractable Problem: The Endurance of Settled In Excess: Does Extended Disclosure of Executive White Privilege in Mainstream Work Cultures Remuneration Expose the Links Between Company Supervisors: Jenny Morgan and Irene Watson Performance and the Level of Executive Remuneration Supervisors: Geof Stapledon and Chander Shekhar Ntoko Ewang, F Does the Capital Maintenance Doctrine Adequately Shi, C Protect Corporate Stockholders? Corporate Governance, its Theoretical Development Supervisor: Ian Ramsay and Issues of Chinese Corporate Governance Supervisor: Tim Lindsey O’Regan, S Multi-Party Environmental Conflicts and the Advantage Simic, O of Early Intervention Gender Based Violence and Human Rights Violations Supervisors: Camille Cameron and Carolyn Evans Committed by UN Peacekeepers Supervisors: Dianne Otto and Helen Durham Oswald, B The Application of International Law to United Nations Steiner, K and Regional Peace Operations Are ‘Asian Values’ ‘Universal’? International Discourses Supervisors: Tim McCormack and Wendy Larcombe on Human Rights Policies Supervisor: Tim Lindsey Parker, D Lifting the Veil and Corporate Personality Storey, M Supervisor: Ian Ramsay Statutory Property in Australia Supervisors: Michael Crommelin, Simon Evans and Purcell, J Lee Godden A Corrective and Distributive Justice Analysis of Creditor Entitlements in Bankruptcy Sugden, P Supervisor: Michael Bryan An Analysis of Remedies in International Property Law Supervisor: Michael Bryan Rogers, J Fantasies of ‘Female Genital Mutilation’: Tan, D Flesh, Law and Freedom through Psychoanalysis Fame: Remember my name!: Protecting the Right to Supervisor: Peter Rush Human Personality in Australia Supervisors: Andrew Christie and Andrew Kenyon Ruschena, D Litigation and Liability as Regulation to Reduce Tobacco Tobin, J Related Harm: Making the Polluter Pay for the Harm Dancing with Folk Devils: The Administration of Juvenile Tobacco Causes Justice – A Rights Based Response Supervisors: Camille Cameron, Jonathan Liberman and Supervisors: Anne Orford and Philip Alston Christine Parker Vaitiekunas, A Saunthararajah, J The Court of Arbitration for Sport: Does it Make Law? Negotiating Legal Identities: Hindu Law in Singapore Supervisors: Hayden Opie, David Wood and Gillian Triggs and Malaysia Supervisors: Pip Nicholson, Abdullah Saeed and Li-ann Thio
106 Faculty of Law Research Report 2006 research higher Degrees in progress
Includes theses under examination
Wardrop, E Green, M Representation of the Public Interest in the Insolvency Election Communication and Free Speech Law and of Privatised Essential Services Practice. A Comparative Study of Constitution Provisions, Supervisor: Tim Lindsey Legislation, and Regulation in Australia, the United Kingdom and the United States. Welsh, M Supervisor: Andrew Kenyon Civil and Administrative Penalties and the Corporations Act Supervisor: Ian Ramsay Rome-Sievers, C Insolvent Companies and Equitable Proprietary Claims White, A Supervisors: Michael Bryan Islamic Arbitration (Takhim) as an Answer to Demands for Shari’ah-based Dispute Resolution in the Context of Sherman, T Secular States. An Analysis of the Experience in Indonesia The Introduction of the Consolidated Regime into the and a Proposed Framework for Implementation in the Income Tax Assessment Act 1997 (Cth): An Analysis United States of the Effect on the Subsidiary Disposal Decision for a Supervisors: Tim Lindsey and Abdullah Saeed Corporate Group Supervisors: Geof Stapledon and Cameron Rider Wynn-Pope, P What are the Criteria for Determining When a Threat Master of Laws by Thesis to or Violation of Human Security Should Justify an External Intervention? Brodie, M Supervisors: Tim Lindsey and Tim McCormack ‘No-one Shall Be Subjected to Torture’: The Mongolian Reality. A Case Study of the Effectiveness of National Yapao, G Human Rights Institutions’ Strategies and Responses State Participation in Resource Project Developments to Human Rights Violations in the Asia-Pacific Region in Papua New Guinea Supervisors: Dianne Otto and Brian Burdekin Supervisors: Michael Crommelin, Lee Godden and Singh Bhalla Date, J Implications of Canon Law for Church Organisations Young, C Operating in Australia The History of Judicial Dissent Supervisors: Ian Ramsay, Carolyn Evans and Supervisors: Michael Bryan and John Baker Robin Sharwood Zhou, M Duong, M Antidumping in China, the West and the WTO Commercial Dispute Resolution in the Vietnamese Supervisor: Gillian Triggs Economic Court Supervisors: Pip Nicholson and P Eli Mazur Doctor of Judicial Science Dzau, J Adam, K Corporate Social Responsibility: To Act in the Best Mediating Work and Family Responsibilities: Interests of the Company – A Paradigm Shifts A Comparative Study of Legislative Strategies Supervisors: Christine Parker and James McConvill Supervisors: Jenny Morgan and Beth Gaze Gisonda, E Alcordo, E Ideology of Australian Contract Law Corruption in the Philippines: A Failure in Law Reform Supervisor: Andrew Robertson Supervisors: Michael Tilbury and Pip Nicholson Hochstrasser, D The Admittance of Physical Evidence Supervisors: Jeremy Gans and Andrew Palmer
Research Degrees in Progress 107 research higher Degrees in progress
Includes theses under examination
Irving, J Security and Liberty: Anti-terrorism Laws in Australia Supervisors: Tim McCormack and Carolyn Evans Lester, E Realising the Economic, Social and Cultural Rights of Non-Citizens: Enhancing Rights and Remedies in Australia Supervisor: Dianne Otto Maher, A Unfair Dismissal Re-regulated: The Move to Private Regulation on Termination of Employment – Rights and Remedies Supervisors: Richard Mitchell and Colin Fenwick Martin, P The Impact of Human Rights in Scotland: Five Years After Devolution Supervisors: Carolyn Evans and Jim Murdoch Nel, E Child Victim Witnesses of Sexual Offences in the Criminal Justice System Supervisors: Jeremy Gans and Andrew Palmer Otomo, Y The Changing Landscapes of Risk Supervisor: Anne Orford Parsley, C Giorgio Agamben and the Failure of Law Supervisor: Peter Rush Testart, M Pure Economic Loss and the Australian Insurance Industry: The Search for a Bright Line Supervisor: Christian Witting Tyrrell, S Proceeds of Crime – The Monster that ate Jurisprudence Supervisor: David Wood
108 Faculty of Law Research Report 2006 Compiled by the Office for Research For more information Ms Margherita Matera – Manager Law Research Faculty of Law Ms Angela Hendley-Boys – Project Officer Location: University Square Ms Lucy O’Brien – Research Support Officer 185 Pelham Street, Carlton, Victoria 3053 Ms Lupe Trigo-Rossier – Administrative Assistant Tel: +61 3 8344 1090 Ms Suzie Trajcevska – Administrative Assistant Fax: +61 3 8344 4601 Website: http://research.law.unimelb.edu.au contents/ www.research.law.unimelb.edu.au
Authorised by the Associate Dean (Research Published by the Office for Research (Law) The University of Melbourne
INTELLECTUAL PROPERTY DISCLAIMER STATEMENT ON PRIVACY POLICY
For further information refer to: The University has used its best When dealing with personal or health www.unimelb.edu.au/Statutes/ endeavours to ensure that material information about individuals, the contained in this publication was correct University of Melbourne is obliged to COPYRIGHT IN THIS PUBLICATION IS at the time of printing. The University comply with the Information Privacy Act OWNED BY THE UNIVERSITY AND NO gives no warranty and accepts no 2000 and the Health Records Act 2001. PART OF IT MAY BE REPRODUCED responsibility for the accuracy or WITHOUT THE PERMISSION OF THE completeness of information and the For further information refer to: UNIVERSITY. University reserves the right to make www.unimelb.edu.au/unisec/ privacypolicy.htm CRICOS PROVIDER CODE: 00116K changes without notice at any time in its absolute discretion.