Research Report 2007 Contents

Message from Associate Dean (Research) 1 Australian Research Council (ARC) Fellowship 2 ARC Professorial Fellowship – Anne Orford 4 Funded Research 7 Grants Commencing in 2007 8 selected Grants in Progress 10 Centres and Institutes 16 Asian Law Centre 18 Asia Pacific Centre for Military Law 22 Centre for Employment and Labour Relations Law 25 Centre for Comparative Constitutional Studies 28 Centre for Corporate Law and Securities Regulation 32 Centre for Media and Communications Law 35 Centre for Resources, Energy & Environmental Law 39 Centre for Islamic Law and Society 42 Institute for International Law and the Humanities 45 Intellectual Property Research Institute of 50 the Tax Group 52 Academic Research Profiles 56 Jennifer Beard 58 Beth Gaze 60 Matthew Harding 62 stuart Kaye 64 Published Research 66 Journals, Magazines and Newsletters 78 Journal Affiliations 83 Faculty Research Workshop Series 89 International Research Visitors Scheme 94 Student Research Prizes 95 Academic Staff 96 Graduate Research Student Profiles 105 Yoriko Otomo 106 David Tan 107 Graduate Research Degrees Completed in 2007 110

Graduate Research Degrees in Progress 111 MESSAGE FROM THE ASSOCIATE DEAN (RESEARCH)

It is my great pleasure to present the research report for , 2007, the 150th anniversary year of Melbourne Law School. Continuing our fine historical tradition of world class research, the 2007 report demonstrates that the Law School is still making important, new contributions to legal research. In 2007, four Australian Research Council funded projects commenced, including a professorial fellowship of Professor Anne Orford on the topic of Cosmopolitanism and the Future of International Law. Other exciting grant projects that commenced in 2007 include works on Chinese employment law, discrimination and religious freedom, and international operations and the Australian Federal police. The grants in progress are also outlined in the report. Thanks are due to Andrew Kenyon and Helen Rhoades who acted as faculty grant shepherds over the last year and whose support and guidance was crucial to our grant success. The report also gives an overview of the exceptional work being carried out by our centres, institutes and research groups. These research groupings play a vital role in contributing to the intellectual life of Melbourne Law School through their research, organisation conferences and seminars, hosting international visitors, and provision of support for research students. Four members of academic staff and two PhD students are featured in the research report this year. They provide a window into the breadth and depth of the research culture in the Law School and a wide variety of research interests that are pursued here. Melbourne Law School produced approximately 150 publications over the course of 2007. This included 14 authored books and 12 edited books, as well as chapters and articles published in some of the world’s leading journals. The research report also records the outstanding achievements of our students, including the winners of the prizes for student published work. We are particularly delighted to record the achievements of the 13 graduate research degree students who completed doctorates or masters of law by theses in the past year. I would like to recognize the work of Associate Professor Christine Parker and Professor Gerry Simpson in their role as coordinators of the graduate research program. Finally I would like to acknowledge the significant contribution of my predecessor, Professor Andrew Robertson, who was Associate Dean (Research) from 2005 until the middle of 2007 and oversaw many important developments in both research and research training. Particular thanks should also be given to the members of the research office: Mr Matt Randall (Manager), Ms Lucy O’Brien, Ms Mas Generis, Ms Sophie Garrett, and Ms Angela Hendley-Boys, who has taken primary responsibility for the production of this report.

Carolyn Evans Associate Dean (Research)

Message from the Associate Dean (Research) 1 2 Melbourne Law School Research Report 2007 Australian Research Council (ARC) Fellowships

3 ARC Professorial Fellowship

Anne Orford Cosmopolitanism and the Future of International Law (2007–2011)

Project Description and Aims

Institutional and political developments since the end of the Cold War have led to a revival of interest in the work of Immanuel Kant. This has intensified with the attacks on the United States of September 11, 2001, and the use of force against the territory and people of Afghanistan and Iraq carried out in response. Many scholars in law and the humanities have embraced a cosmopolitan vision of the future of international law in answer to the sense of crisis that these events have precipitated. They envisage a world organization capable of representing universal humanity and of operating as the agent of a unified and coherent system of international law. In UN reports, as in much international legal scholarship, the invocation of new threats, challenges and changes leads us beyond any already existing institutions. Even before the recent sense of crisis engendered by the eruption of the war on terror, cosmopolitan internationalists argued that international institutions are not strong enough to cope with the challenges facing them and must be remade to meet the needs of our ‘shared future, based upon our common humanity in all its diversity’ (UN Millennium Declaration 2000). Much recent support for a cosmopolitan revision of international law and institutions has explicitly turned to Kant as a source of guidance for the design of a new architecture to enable global organizations to represent the needs of a common humanity. The adoption or advocacy of cosmopolitanism as a way of understanding the world, and as a programme for designing new institutions to reflect this understanding of the world as a cosmopolitan order, has been met with two major modes of critique. The first mode is to point to the dangers inherent in adopting a Kantian programme in our time. This critical tradition points to the close dependence of the Kantian vision of a universal history on the lessons generated by an 18th century European anthropology deeply complicit with the imperial project, and expresses concern at the messianic tendency of cosmopolitanism to overlook the damage done in the march of progress towards a better future for humanity. This line of critique questions the obsession with institutional renewal which Kantianism appears to create, and locates the Kantian project within a liberal capitalist tradition which foregrounds procedural norms of the rule of law and democracy while failing to notice the relations of domination or exploitation that are enabled in (or by) the process.

4 Melbourne Law School Research Report 2007 ARC Professorial Fellowship

A second mode of critique has to date received little Part 2 of the project, Practising cosmopolitanism, attention in the field of international law. This approach looks to the implications of the contemporary return involves a close (and somewhat hesitant) embrace of the to cosmopolitanism. This component of the project speculative aspects of Kant’s writings, and an appreciation will address three developments in international law of Kant as a theorist who was attuned to the questions and relations which have either been supported as that arise at the limit of the subject or the state under manifestations of the Kantian project, or critiqued as failing modern, secularizing conditions. This return to Kant treats to live up to the cosmopolitan promise: (1) humanitarian him not as the generator of a pre-packaged programme intervention; (2) the engagement of international law with of reform, but rather as an early theorist of the modern economic globalization; and (3) shifts in the regime for politics we now call globalization. In this tradition, Kant is the protection of refugees. This part aims to explore the of interest as a thinker who offers the capacity to resist tensions between these practices, the ways in which ideological closure — the gift of the future. cosmopolitanism is used to account for these practices The project will integrate and build upon this scholarship and the means by which cosmopolitan practice seeks to in the fields of international law, jurisprudence, history and change international law and institutions. Professor Orford social and political theory in order to: has begun work on the first of these developments – the emergence in law and politics of the related concepts 1. engage in a historical investigation of those institutional of humanitarian intervention and of a ‘responsibility to and conceptual conditions of the Kantian vision which protect’. are relevant to international law; Part 3 of the project, The future of international law, is 2. analyse a series of institutional and doctrinal designed to reverse the movement of much cosmopolitan developments which have been either treated as literature — from a commitment to the ideal of humanity, manifestations of the Kantian project, or critiqued through an interrogation of modern state politics, to a as failing to live up to the cosmopolitan promise – preoccupation with international institutional design. humanitarian intervention, economic globalization and Instead, it will start with institutions as a question — refugee protection; and what is at stake when those who seek to transcend 3. explore the implications of the above analysis of the state sovereignty are so regularly tempted to reproduce theory and practice of cosmopolitanism for the future of the image of a sovereign guarantor of law on the international law and institutions. international plane? What is lost when the Kantian project is transformed into a programme rather than a provocation Progress to thought? Inspired by Kant’s relentlessly critical approach Part 1 of the project, The possibility of cosmopolitanism, to thinking about the paradoxes involved in the progress of is designed to draw upon the two strands of critical secularism and modernity, this final aspect of the project engagement with Kant outlined above, in order to explore will explore the ways in which cosmopolitanism creates a the conceptual and institutional conditions of possibility future for international law. for cosmopolitanism. The goal of this first part of the project is to reflect upon how cosmopolitan law has arrived Outcomes to Date outside Europe and North America, and the ways in which 1. International workshops at the of Lund a cosmopolitan vision has historically been sustained (2007) and the University of Helsinki (2009) through relations with Europe’s (former) colonies. That In September 2007, Professor Orford co-convened initial component of the project is well under way. an international workshop at the University of Lund, Professor Orford has begun to develop a methodology for Sweden, on the theme of International Law and Wars framing questions about the meaning of cosmopolitanism of Religion. The workshop was co-convened with two historically. She has related the version of cosmopolitanism leading European international lawyers, Professor Martti that appears in the work of Immanuel Kant to Koskenniemi of the Erik Castrén Institute of International developments in European thought about the state and Law and Human Rights at the University of Helsinki, international relations from the sixteenth century onwards. and Professor Gregor Noll at the University of Lund. She has also related Kant’s writing on law and politics to The workshop explored the history of cosmopolitan developments in European colonialism and Christianity, and international law as a modernizing and secularizing project. the implications this had for European intellectuals of his This interdisciplinary workshop brought together scholars generation. from the US (Harvard, Cornell, Utah), Europe (Copenhagen, European University Institute, Helsinki, Lund), the

ARC Fellowships 5 ARC Professorial Fellowship

Middle East (American University in Cairo) and Australia • Cosmopolitanism and International Economic Law, (Melbourne, Griffith). The workshop also allowed doctoral paper presented at a workshop on ‘The Right to students from the three host to present their Regulate in International Law’, Institute for International work and engage with leading scholars in the field, thus Law and the Humanities, , contributing to research training. A second workshop will July 2007 be co-hosted by Professors Orford and Koskenniemi, • The Responsibility to Protect as a Theory of the State, planned for December 2009. This workshop will relate to paper presented by invitation at an international the second and third case studies planned for this project conference on ‘Legality and Legitimacy in the (on perpetual peace through prosperity, and the free International Order’, United Nations University and movement of peoples). It will be held at the Erik Castrén Orfalea Center for Global and International Studies, Institute of International Law and Human Rights, University University of California, Santa Barbara, 27–28 April 2007 of Helsinki. Professor Orford also took part in an International Expert 2. Presentations Meeting on International Humanitarian Law and Gender, Professor Orford gave the following presentations related hosted by the Swedish Ministry for Foreign Affairs, the to this project during 2007: Swedish National Defence College and the Asia Pacific Center for Military Law, in Stockholm, October 2007. • Cosmopolitanism as the Future of International Law?, Participants at the meeting included senior legal advisers seminar presented by invitation at the University of Paris to NATO and to the militaries of the US, Sweden, Fiji, Sri 1 (Panthéon-Sorbonne), 15 December 2007 Lanka and Ireland, legal advisers to the International Red • The Responsibility to Protect and the Politicization of Cross, representatives of the African Union mission to International Law, seminar presented by invitation to Darfur, and senior foreign office legal advisers from the the Oxford Public International Law Discussion Group, Netherlands and Sweden. Professor Orford presented , 29 November 2007 aspects of her work on the responsibility to protect. • The Cosmopolitan Turn in International Law, roundtable 3. Project-Related Publications seminar presented by invitation at the Research Institute of Law, Politics and Justice, Keele University, ‘The Responsibility to Protect as a Theory of the State’ in 27 November 2007 R Falk, R Thakur and V P (eds), Legality and Legitimacy in the International Order, United Nations University Press, • The Responsibility to Protect and the Politicization of (forthcoming 2008) International Law, public lecture presented by invitation at the Faculty of Law, University of Uppsala, ‘What Can We Do to Stop People Harming Others? 8 November 2007 Humanitarian Intervention in Timor-Leste (East Timor)’ in J Edkins and M Zehfuss (eds), Global Politics: A New • Intervening for Humanity? Human Rights and the Use Introduction, Routledge, (forthcoming 2008) of Force in the Post-Cold War Period, parallel public lecture series presented by invitation at the Department ‘Von der Humanität der Stärke zur Verantwortung für of History, Central European University, Budapest, den Schutz. Die neue internationale Interventionspolitik’ 16 October 2007, and the Institute for International [‘From Muscular Humanitarianism to the Responsibility to Development, University of Vienna, 17 October 2007 Protect: The New Politics of International Interventionism’] in K Fischer and S Zimmerman (eds) Internationalismen: • Legality, Legitimacy and the Responsibility to Protect, Transformation weltweiter Ungleichheit im 19. und 20. guest lecture presented by invitation at the Faculty of Jahrhundert, trans Andrea Kremser, Promedia Verlag: Law, University of Stockholm, 3 October 2007 Vienna, (2007), 237–255 • From Metaphysics to Politics? The Responsibility to ‘Ritual, Mediation and the International Laws of the South’ Protect as a Theory of the State, paper presented at an (2007) 16 Griffith Law Review 353–374 International Workshop on ‘International Law and Wars of Religion’, Faculty of Law, University of Lund, 19–21 September 2007

6 Melbourne Law School Research Report 2007 Funded Research

7 Grants Commencing in 2007

Australian Research Council (ARC) Australian Research Council (ARC) Discovery Project Grants Linkage Project Grants

Sean Cooney, Sarah Biddulph and Yin Zhu Bruce Oswald, Tim McCormack, Stuart Kaye (Department of Management, University of and Helen Durham (2007–2010) Melbourne) (2007–2009) ‘International Operations and the Australian Federal ‘Enforcement of Chinese Employment Law: Police: Devising a Legal Framework’ Regulatory Innovation and Wage Arrears’ ARC funding of $189,024, Partner funding of $271,110 Funding $140,000 Total funding: $460,134 Australia’s security and economic well being is closely Partner Organisation: Australian Federal Police bound up with China. It is in Australia’s interest that China As a major player in the maintenance of regional peace develops a sound legal system as the foundation of a and security, Australia is increasingly using Australian prosperous, humane and stable society. The pervasive Federal Police (AFP) in a range of international operations. failure to pay Chinese workers their correct wages tests The extent of deployments and the expectations both the capacity and credibility of Chinese law. An assessment governments and communities place on these operations of the legal system’s response to the wage problem is unprecedented. This project, in collaboration with the will provide specific insights on securing compliance AFP, will draw upon recent experiences to provide a with the employment law in China, benefiting Australian clear legal framework, advancing the capacity for AFP foreign policy makers, traders, investors and overseas deployments to maintain their high commitment to the development organisations. It will facilitate collaborative rule of law. The project is of international significance and work between China and Australia on strengthening the will consolidate Australia’s reputation as innovative and regulatory capacity of Chinese institutions. influential in the planning, management and conduct of police in international operations. Carolyn Evans and Beth Gaze (2007–2009) ‘Non-Discrimination Laws and Religious Freedom: Current Conflicts and Future Directions’ Funding $162,000 Achieving the right balance between adequately protecting religious freedom while staying true to principles of non- discrimination is far from easy. This project will advance understanding and analysis of religious freedom and equal treatment in Australia, in principle, in law and empirically. In the context of community tensions along ethno-religious lines, it will benefit Australia to have the issues at stake described and clarified. The project will identify the relevant interests at stake and develop policy recommendations for their protection. The aim is to contribute to inter-religious (and inter-cultural) harmony, as an element of safeguarding Australia.

8 Melbourne Law School Research Report 2007 Grants Commencing in 2007

Faculty Small Grants Scheme Melbourne Early Career Researcher Grant Scheme Michael Bryan and Matthew Harding ‘Responding to Fraud in Land Registration Systems: Caron Beaton-Wells A Comparative Study’ ‘The Heavy Electrical Equipment Antitrust Cases of 1999–2000’ Linda Haller ‘Lawyer Discipline in : A Statistical Joo-Cheong Tham Analysis’ ‘Parliamentary Protection of Human Rights in an Age of Counter-Terrorism’ Cally Jordan ‘A New Regulatory Paradigm for International Capital Markets’

Christine Parker ‘Exploratory Study of Incorporation and Listing of Larger Law Firms in Australia, and their Ethical Implications’

Jacqueline Peel and Lee Godden ‘Developing a Governance and Regulation Framework for Addressing Issues of Climate Change’

Funded Research 9 Selected Grants in Progress

Chief Investigators: Andrew Christie and Kimberlee Weatherall (University of ) Researchers: Chris Dent and Fiona Rotstein “… and by opposing, end them: A Comparative Examination of Opposition Processes in Patent Law” ARC Discovery Project (2006–2008)

Project Description Three methods are being used in this project: The patent system is designed to encourage innovation. By 1. Traditional documentary legal analysis: this method giving inventors exclusive rights to exploit their invention, involves the collation and analysis of patent legislation, governments hope to provide incentives for research and case law and procedure that informs opposition development, and commercialisation of the outcomes practices in Australia, the US and before the European of research. Recently, however, a controversy has arisen Patent Office (EPO). over whether the patent system is really achieving these 2. Quantitative analysis: based on the creation of a aims. Increasingly people are aware that not only patent database that includes information from all Patent Office law, but also the system for granting patents, is crucial and court decisions relating to the opposition procedure to the effectiveness of patents in promoting innovation. from 1985 to 2005 in Australia. A range of variables is Two issues lie at the heart of this controversy. First, many being collected, including information about the patent observers are concerned that there are too many invalid involved; the parties and counsel involved; and the patents being granted. Second, there is growing concern decision. that patents and patent law are being used by firms in a predatory way – that is, in ways which hinder innovation 3. Qualitative techniques: involving the interviewing of and which, in particular, harm smaller firms. legal professionals who work in the area of patent law (lawyers and patent attorneys). The purpose of the One part of the patent system brings these issues interviews is to gain an understanding of the operation together: opposition. In Australia, after the Patent Office of the law in practice (in Australia, the US and before (IP Australia) has examined and accepted an application the EPO) and of the strategies and tactics employed for a patent, but before the patent is finally granted, other by lawyers and their clients to protect or advance their people may oppose the grant. If this happens, there will be intellectual property interests. a hearing in IP Australia, where the opposing party brings evidence and argues why the invention is not patentable. Current Findings This project is the first to study this important part of the So far, the work on the project has focused on the Australian patent system and will contribute a legally- background matters and the collection of the empirical focused, comparative and qualitative approach to an area data. A more detailed picture of the differences, in practice, which, to date, has been the almost exclusive preserve of between the procedures in the different jurisdictions economists. has been revealed. Further, over 50, semi-structured, interviews have been conducted in Australia, Germany, the UK and the US – providing fascinating insights into the strategies employed by patenting firms and their competitors.

10 Melbourne Law School Research Report 2007 Selected Grants in Progress

Project Outputs To date, the outputs of the project have focused on articles in refereed journals. There has been one published: C. Dent, ‘Patent Oppositions and the Constitution: Before or After?’ (2006) 17 Australian Intellectual Property Journal 217; and another accepted for publication: F. Rotstein and C. Dent, ‘Third Party Challenges in Europe, the United States and Australia: A Comparative Analysis’ (forthcoming, International Review of Intellectual Property and Competition Law). Three other articles have been submitted for publication in national and international journals. In addition, preliminary results from the interviews carried out in the UK were included in an oral submission to the Advisory Council on Intellectual Property’s review of Post-Grant Patent Enforcement Strategies.

Remaining Aspects The balance of the project is to focus on the completion of the empirical data collection and its analysis. Another 20 interviews are to be carried out in Germany and another 25 are to be conducted in Australia. The latter interviews are aimed at gaining practitioner perspectives on issues raised in the overseas interviews. The work on the database will also be completed. This work will result in a number of refereed journal articles and a report to be circulated to the Patent Offices, and practitioners, that have provided support for this project.



Funded Research 11 Selected Grants in Progress

Chief Investigators: Andrew Kenyon and Andrew Christie Research Fellow: Robin Wright and PhD Student: Emily Hudson ‘Cultural Collections, Creators and Copyright: Museums, Galleries, Libraries and Archives and Australia’s Digital Heritage’ ARC Linkage Project (2006–2009)

Project Description and Objectives Progress Digital communications technologies offer new ways for The project has been divided into 5 stages. Stages One museums, galleries, libraries and archives to promote and Two have been completed or are in progress; the public access to their collections. However, they also remaining stages will be conducted during 2008 and 2009. offer substantial challenges to collecting institutions. Stage One identified and analysed relevant legal material, Disseminating digital works can infringe copyright, and in building on earlier research about converting analogue seeking to use digital technologies, collecting institutions collections into digital form and drawing on legislation, have responsibilities to creators as well as to the public. case law, law reform reports and academic writing about The project spans these concerns by focusing on current disseminating digital material. The project’s examination and emerging ways of publicly using digital collections of different models of copyright exceptions, as well as and managing copyright and creators’ interests. It involves statutory and voluntary licences, was placed within the empirical research across Australian collecting institutions, context of comparable international approaches. An article creators and arts organisations about current and has been published from this stage: anticipated possibilities for using digital material, as well as empirical research with cultural institutions in the US and • Hudson, E and Kenyon, A, ‘Without Walls: Copyright Canada. Law and Digital Collections in Australian Cultural Institutions’ (2007) 4 SCRIPT-ed 197–213 The project aims to produce recommendations about changes to cultural sector practices under current law and Stage Two is developing insights from this analysis about possible law reform. This will support institutions’ efforts uses of digital material and the interests that are likely to to digitise collections and the undoubted public interest be central for collecting institutions, creators and other in facilitating digital access while managing the use of copyright actors. Existing copyright debates suggest that copyright material. The project also aims to deepen the central concerns vary between institutions and creators. understanding of cultural sector practices within copyright To capture the scope of divergent concerns, Stage Two law and policy. The central position of collecting institutions includes focus groups with creators and informants from within the digital environment of creators and users makes collecting institutions conducted in , Canberra and them an excellent site to investigate wider copyright issues Melbourne. Focus groups with collecting institutions have about digital rights and exceptions. explored: what digital material they would like to use, in what ways, now and in the future; how such uses would As well as the Australian Research Council, ten cultural relate to their missions and funding; and how different organisations are collaborating in the project: Arts Law approaches to law and sector practices would affect those Centre of Australia, Australian Centre for the Moving uses. Focus groups with creators have investigated: their Image, Australian Film Commission, Museum , attitudes to the institutions; what uses they think are Museums Australia, National Gallery of Victoria, National appropriate on paid or unpaid bases; their views about Library of Australia, National Museum of Australia, different approaches to managing copyright negotiation Powerhouse Museum, and the State Library of Victoria. and payment (eg on the basis of individual or multiple Andrew Kenyon and Andrew Christie are the Chief works, by themselves or collecting societies); and what Investigators and Robin Wright is a full-time researcher uses of material they would like to be consulted about in on the project. The project also includes an APAI, with any event (which would develop understanding of creators’ Emily Hudson being the PhD candidate. She is conducting moral rights concerns). empirical research into copyright and cultural institutions in the US and Canada.

12 Melbourne Law School Research Report 2007 Selected Grants in Progress

Future Work Future stages may include a survey of creators to investigate the prevalence of views about key copyright issues, and will outline central policy issues about digital collections as revealed through the earlier research. From this analysis, copyright models for different types of material and uses will be developed. The aim is to produce a report about viable models for dealing with digital collections, which explains the key decisions on which proposed models are based and how they relate to the interests of collecting institutions, creators and other copyright actors. The analysis will consider Australian and relevant international approaches, and take account of the key findings from the APAI’s Canadian and US empirical research.

Funded Research 13 Selected Grants in Progress

Chief Investigators: Andrew Kenyon, Tim Lindsey, Tim Marjoribanks (Sociology Program – University of Melbourne) and Amanda Whiting Research Fellow: Naomita Royan ‘The Media and ASEAN Transitions: Defamation Law, Journalism and Public Debate in Indonesia, Malaysia and Singapore’ ARC Discovery Project (2006–2009)

Project Description and Objectives Project Outcomes Defamation law in Indonesia, Malaysia and Singapore Publications and Conference Papers is commonly understood to chill media speech and • Kenyon, A and Marjoribanks, T, ‘Transforming Media restrain public discussion. However, in the context of Markets: The Cases of Malaysia and Singapore’ (2007) 5 political, economic and social transitions media content Australian Journal of Emerging Technologies and Society is diversifying and journalists and civil society groups are 103–118 challenging defamation law’s chilling effect. This project combines legal research, media content analysis, and • Kenyon, A, ‘Defamation and Journalism in Indonesia, qualitative interviews to analyse how defamation risks Malaysia and Singapore’, commentator at 2007 are negotiated in print, broadcast and internet journalism Conference of the New York-based Media Law Resource practices in each of the three countries, and how local, Center, 17–18 September 2007 Australian and international journalists and civil society • Kenyon, A and Marjoribanks, T, ‘The Future of organisations are mobilising a range of strategies to ‘Responsible Journalism’: Defamation Law, Public broaden media content and promote public debate. Debate and News Production’, The Future of The project is the first comparative, empirical examination Newspapers Conference, Centre for Journalism Studies, of issues surrounding the chilling effect of defamation law Cardiff University, Wales, 12–13 September 2007 in the ASEAN region. It combines legal and media studies • Royan, N, ‘Increasing Press Freedom in Indonesia: research, media content analysis, and qualitative interviews the Abolition of the ‘Insulting the President or by drawing on the research team’s expertise in: media Vice President’ Criminal Provisions and its Effect law; media studies and sociology; the legal systems of on the Media’, 16th Asian Media Information and Indonesia, Malaysia and Singapore; and the team’s strong Communication Centre Annual Conference, Singapore, links to mainstream and independent journalists within the 26 June 2007 region. • Royan, N, ‘Increasing Press Freedom in Indonesia: The The project is developing detailed legal analyses of Effect of the Abolition of the lese majeste and ‘Hate defamation in Indonesia, Malaysia and Singapore, taking Sowing’ Provisions on the Media’, Asian Law Centre into account each country’s media environment and Brown Bag Seminar, The University of Melbourne, 15 wider framework of media laws. In 2008, these are August 2007 being combined with comparative content analyses of print, broadcast and internet-based media to investigate the coverage of public issues by the media. In addition, the research team plans to undertake interviews with domestic, regional and international journalists, lawyers and civil society actors in each of the countries.

14 Melbourne Law School Research Report 2007 Selected Grants in Progress

Chief Investigators: Ian Ramsay, Cameron Rider, Ann O’Connell and Richard Mitchell ‘Employee Share Ownership Plans: Current Practice and Regulatory Reform’ ARC Discovery Project (2006–2008)

Project Description and Objective • A survey examining current objectives and practice This project is a joint initiative of the Centre for Corporate in relation to broad-based employee share plans has Law and Securities Regulation, the Centre for Employment been administered to over 1500 companies listed and Labour Relations Law and The Tax Group. The chief on the Australian Securities Exchange (ASX). The researchers on this project are Professor Ramsay, Professor survey also elicited views as to the adequacy of the Richard Mitchell and Associate Professor Ann O’Connell. current regulatory regime in corporations and tax law. This survey was administered by telephone, internet Employee share ownership plans (ESOPs) are important to and post in October and November 2007, with the the development of an economic culture of enterprise and assistance of 8 research assistants. The survey achieved innovation and the building of national wealth and savings a response rate of around 23%. in response to long-term demands of intergenerational equity. ESOPs require development through appropriate • Research has been undertaken on why employees regulatory frameworks. participate in employee share ownership plans. This question has received relatively little attention in the This project will subject the existing regime of tax, academic literature, yet has important implications corporate and labour law to technical and empirical for understanding the outcomes of employee share scrutiny. It will produce the first comprehensive analysis ownership and for public policy. To examine this issue, of how currently legal regulation structures and constrains semi-structured interviews have been conducted with the use of ESOPs in Australian enterprises. It will examine HR managers and trade union representatives within a the current incidence and forms of ESOPs in Australia, number of large publicly-listed companies with ESOPs. the diversity of objectives that such schemes serve, the Drawing upon the data collected in these interviews, a extent to which current corporate, tax and labour law conceptual framework on why employees participate inhibit ESOPs, and the case for reform of the regulatory or decline to participate in employee share plans has framework. This will enhance the capacity of policy makers been constructed. The researchers plan to test this to evaluate and identify appropriate regulatory techniques framework through administering a survey to employee to ensure the growth of efficiency of ESOPs at the national shareholders and non-shareholders within several and enterprise level. different companies. Project Outputs • Comparative research has commenced on the regulatory frameworks for employee share ownership in Key outputs of the Employee Share Ownership Project to a number of overseas jurisdictions. date include: The employee survey will be administered in 2008. • Production of a comprehensive legal analysis of the Activities on the project in 2008 will also include hosting a legal framework governing ESOPs in Australia, in number of workshops – involving key stakeholder groups, corporate, taxation and labour law. Research findings practitioners, regulators and academics – to present were initially published on the project website as four research findings; identify key regulatory obstacles in research reports. Associate Professor Ann O’Connell’s different sectors of the economy; and discuss proposals work on the taxation of employee share ownership has for reform. since been presented at the Australasian Tax Teachers Association Conference in 2007 and will be published in a forthcoming edition of the Journal of the Australasian Tax Teachers’ Association. An edited compilation of the four research reports has been accepted for publication in the UCLA Pacific Basin Law Review

Funded Research 15 16 Melbourne Law School Research Report 2007 Centres and Institutes

17 Asian Law Centre

The Asian Law Centre, an initiative of Melbourne Law • ARC Discovery Grant: ‘Islamic Law in Contemporary School, commenced activities in 1985. It is the first Malaysia, Singapore and Brunei: The Anglo-Malay Australian centre established to teach and undertake Madhhab’ (2005–2007) (Lindsey,T) research on the legal systems within Asia. It is now the • SSHRC Grant, Canada: ‘Cross Cultural Dispute largest centre for the study of Asian legal systems in the Resolution’ (2003–2007) (Biddulph, S, University of world. British Columbia, partner institution) The Centre has pioneered extensive programs of teaching and research on the laws and legal systems of Japan, Publications China, Indonesia, Vietnam, Taiwan and Malaysia and on The following books were published by Centre members Islamic law and Asian commercial law. It has also worked in 2007: on law in Korea, Thailand, Laos, East Timor and the Philippines. • Biddulph, S, Legal Reform and Administrative Detention Powers in China, Cambridge University Press, United Objectives Kingdom (2007) The Centre’s objectives focus on Asian legal systems and • Lindsey, T (ed), Law Reform in Developing and comparative law: Transitional Economies, Routledge, London (2007) • to improve understanding of the laws and legal systems • Nicholson, P, Borrowing Court Systems: The Experience of Asia; of Socialist Vietnam, Martinus Nijhoff, Leiden (2007) • to support the rule of law in Asia; Australian Journal of Asian Law • to promote the teaching of Asian law at both graduate The Asian Law Centre jointly publishes the Australian and undergraduate levels, and the teaching of Australian Journal of Asian Law (AJAL) with colleagues from the law in Asia; at Seattle and the Australian • to promote the development of Asian studies and Asian National University. A peer-refereed scholarly journal, the languages in other disciplines and to encourage linkages AJAL is now a leading forum for debate for scholars and with law studies; and professionals concerned with the laws and legal cultures of Asia. • to promote exchanges of scholars and students between Australian and Asian universities and institutions. Asian Law Online Research Projects http://alc.law.unimelb.edu.au/bibliography Centre members are engaged in research on a diverse Asian Law Online, launched in 2002, is the first online range of topics relating to Asian legal studies. Members bibliographic database of Asian law materials in the world. of the ALC worked on the following research projects in Offered to the public as a free service to assist students, 2007: scholars and practitioners of Asian legal systems, it is a collection of English language materials on Asian laws • ARC Federation Fellowship: ‘Islam and Modernity: available throughout the world and includes books, Syari’ah, Terrorism and Governance in South-East Asia’ chapters in books, journal articles and theses. (2006–2011) (Lindsey,T) The database is organised by countries in East Asia and • ARC Discovery Grant: ‘Enforcement of Chinese a selection of basic legal areas. The database can be Employment Law, Regulatory Innovation and Wage searched for any word or a more specific advanced search Arrears’ (2007–2009) (Cooney, S, Biddulph, S and Zhu,Y) can be conducted. The database is also linked to a list of • ARC Discovery Grant: ‘The Media and ASEAN useful websites for each country and legal area. Transitions: Defamation Law, Journalism and Public Debate in Indonesia, Malaysia and Singapore’ (2006–2009) (Lindsey,T, Whiting, A, Kenyon, A and Marjoribanks, T)

18 Melbourne Law School Research Report 2007 Asian Law Centre

Seminars • ‘Islamic Commercial Law Reform in Afghanistan: A First-Hand Account’, Mr Andrew White, PhD Comparative Law Seminar Series Candidate and Senior Fellow, Faculty of Law, The In this series, internationally recognised scholars of University of Melbourne (with Centre for Islamic Law comparative law and/or socio-legal theory, present on its and Society) (2 May 2007) application to Asia. Recent seminars include: • ‘Cultural Diversity in the South of Thailand: Language, • ‘In Search of the Grundnorm: Coups and Constitution- Policy and Reconciliation’, Thai Muslim Visitors (with Making in Thailand’, Professor Andrew Harding, Centre for Islamic Law and Society) (8 May 2007) Faculty of Law, University of Victoria, BC, Canada (12 September 2007) • ‘Citizen Lawyer: Lawyers, Civil Society and the Rule of Law in Singapore’, Ms Jothie Rajah, PhD Candidate, Occasional Seminar Series Faculty of Law, The University of Melbourne In this series, distinguished scholars and leading (15 May 2007) practitioners present on current Asian legal issues. Recent • ‘Substantive Equality and Legal Pluralism in Indonesia: seminars include: A Case Study of Joint Ministerial Decrees on the • ‘Two Major New Commercial Laws for China: The Construction of Worship Places’, Dr Nadirsyah Hosen, Enterprise Bankruptcy Law and the Property Rights Lecturer, Faculty of Law, (with Law’, Mr Andrew Godwin, Associate Director (Asian Centre for Islamic Law and Society) (16 May 2007) Commercial Law), Asian Law Centre, The University of • ‘What Happens When A Comparativist Starts Listening Melbourne (18 April 2007) to Stories?’, Mr Jeremy Kingsley, PhD Candidate, • ‘A Scenario of Chinese Crime: Towards a Thieving or Faculty of Law, The University of Melbourne (with Violent Society?’, Dr Borge Bakken, Department of Centre for Islamic Law and Society) (11 July 2007) Sociology, The University of Hong Kong (5 July 2007) • ‘Increasing Press Freedom: The Effect of the Abolition • ‘Violence in Southern Thailand: causes, Agents and of the ‘lese majeste’ and ‘hate-sowing’ Provisions on the Trajectory’, Mr John Funston, Executive Director, Media’, Ms Naomita Royan, Research Fellow, Centre National Thai Studies Centre, Faculty of Asian Studies, for Media and Communications Law, Faculty of Law, Australian National University (with Centre for Islamic The University of Melbourne (15 August 2007) Law and Society) (8 October 2007) • ‘Financial Sector Development in East Asia and the Role of Law’, Professor Douglas Arner, Associate Brown Bag Seminar Series Professor, Faculty of Law, University of Hong Kong In this series, postgraduates, academics or visitors who (23 August 2007) are researching and writing on Asian legal topics present papers on work in progress or rehearse a conference • ‘Responses of Local Women’s NGOS to Sharia or article submission. The forum provides a collegial Implementation in Post-Conflict Aceh’, Ms Dina atmosphere for peer feedback. Recent seminars include: Afrianty, PhD Candidate, Asia Institute, The University of Melbourne (with Centre for Islamic Law and Society) • ‘The Recent Reform of Vietnamese Company Law and (5 September 2007) Corporate Governance Issues’, Mr Bui Xuan Hai, PhD candidate, School of Law, • ‘Water Pollution in China: Can Law Turn the Tide?’, (22 March 2007) Ms Rebecca Nelson, Lawyer, Blake Dawson Waldron (with Asialink) (22 October 2007) • ‘‘Perda Syariat’: Its Implementation and Implication in South Sulawesi, Indonesia’, Mr Andi Amiruddin, PhD • ‘The Chief Justice Saga and the Place of Judicial Candidate, Asia Institute, The University of Melbourne Activism in Pakistan’, Assistant Professor Sadaf Aziz, (with Centre for Islamic Law and Society) (18 April 2007) School of Social Sciences and Humanities, Lahore University (with Centre for Islamic Law and Society) (28 November 2007)

Centres and Institutes 19 Asian Law Centre

Asian Legal Dialogues Visitors These seminars on Asian issues are conducted in Asian The ALC regularly hosts visits by renowned international languages. Recent seminars include: scholars. It participates in the following programs: • ‘A Japanese Judge in Australia’ (In Japanese), Supreme Court of Japan Overseas Training Judge Eriko Kawajiri, Tokyo District Court, Japan and Research Program (7 February 2007) Each year since 2003, the Asian Law Centre has hosted • ‘Justice for Munir?’ (In Bahasa Indonesia), Suciwati and a Judge from Japan as part of the Overseas Training and Usman Chamid (28 February 2007) Research Program of the Supreme Court of Japan. The • ‘The New Chinese Enterprise Insolvency Law (2006) (In Program enables Judges from Japan to experience life Japanese), Ms Jin Chun, Research Fellow, Law School, in a jurisdiction outside Japan for a twelve-month period Kyoto University Law School (22 August 2007) and provides them with a valuable opportunity to study Australian law courses, access University resources and Major Events undertake research and training activities, including visits In 2007, the Centre hosted the following major events: to Victorian courts and meetings with court personnel. • Chuo Law School Melbourne Summer School Supreme Court of Korea Overseas Research (5–17 February 2007) and Study Program • Conference: ‘Water, Energy, and Climate Change Each year since 2006, the Asian Law Centre has hosted Futures: Australia and China’ (with Centre for a Judge from Korea as part of the Overseas Research Resources, Energy and Environmental Law and the and Study Program of the Supreme Court of Korea. The Australia-China Centre on Water Resources Research) Program enables Judges from Korea to experience life (22–24 May 2007) in a jurisdiction outside Korea for a 6–12 month period • Roundtable Discussion: ‘Corruption in Indonesia’ and provides them with a valuable opportunity to study with Associate Professor Ross McLeod, Senior Fellow, Australian law courses, access University resources and Indonesia Project, Division of Economics, Research undertake research and training activities, including visits to School of Pacific and Asian Studies, Australian National Victorian courts and meetings with court personnel. University (14 June 2007) Chuo Law School Melbourne Summer School • ALC Symposium: ‘ in Asia: Professor Each year since 2005, the Asian Law Centre has hosted Malcolm Smith, in Memoriam’ (9 July 2007) the Chuo Law School Melbourne Summer School. The • ALC/CAPI Conference: ‘New Courts in the Asia-Pacific Summer School continues the relationship with Chuo Law Region’ (with Centre for Asia-Pacific Initiatives) School that was developed – and originally taught – by the (13–15 July 2007) late Professor Malcolm Smith when he joined Chuo Law School as Professor of Law, in 2004. The Chuo Law School students enjoy interacting with Melbourne Law School students who participate in the Summer subject ‘Issues in Japanese Law’. They have recently been accompanied to Melbourne by Chuo Law School academics, Professor Satoru Osanai, Professor Dan Rosen and Professor Hisaei Ito.

20 Melbourne Law School Research Report 2007 Asian Law Centre

In 2007, the Centre hosted the following (selected) visitors: Contact the ALC • Judge Eriko Kawajiri, Judge, Tokyo District Court, The Centre’s website can be accessed at: Japan (12 June 2006–19 June 2007) http://alc.law.unimelb.edu.au • Judge Sang Moo Lee, Judge, Pohang District Court, The Centre can be contacted by email at: Republic of Korea, Korea (1 August 2006–31 May 2007) [email protected]. • Judge Sang Ryeol Shin, Judge, Supreme Court of Korea, Korea (20 February–20 August 2007) • Ms Shuan Chen Chou, Council of Labour Affairs, Taiwan, Taiwan (20 March–18 June 2007) • Associate Professor Ross McLeod, Senior Fellow, Indonesia Project, Division of Economics, Research School of Pacific and Asian Studies, Australian National University, Australia (22 May–14 June 2007) • Ms Jin Chun, School of Law, Kyoto University, Japan (23 June–31 August 2007) • Miss Jin Sheng, PhD Candidate, Faculty of Law, University of Hong Kong, Hong Kong (1 June–30 September 2007) • Judge Takamoto Hagiwara, Judge, Tokyo District Court, Japan (13 June 2007–11 June 2008) • Professor Shoichi Tagashira, Graduate School of Law, Sophia University, Japan (4 August 2007–31 July 2008) • Judge Cheol Min Jung, Judge, Supreme Court of Korea, Korea (21 August 2007–20 February 2008) • Professor Andrew Harding, Professor of Asia-Pacific Legal Relations, Centre for Asia-Pacific Initiatives, University of Victoria, Canada (11–14 September 2007) • Hanoi Law University Study Tour Delegation, Hanoi Law University, Vietnam (10–14 September 2007)

Staff The Director is Professor Tim Lindsey (Indonesia, Islam). The Centre’s Associate Directors are Associate Professor Pip Nicholson (Vietnam; Director, Comparative Legal Studies Program), Dr Sarah Biddulph (China), Associate Professor Sean Cooney, Mr Andrew Godwin (Asian Commercial Law), Ms Stacey Steele (Japan), Dr Amanda Whiting (Malaysia). Manager of the Centre is Ms Kathryn Taylor and Ms Kelly McDermott is the Administrative Assistant

Centres and Institutes 21 Section Head SectionAsia Pacific Subhead Centre for Military Law

The Asia Pacific Centre for Military Law (APCML) was Major Events in 2007 established in 2001 as a collaborative initiative of Defence Legal in the Australian Department of Defence and the Civilian Policing in Peace Keeping Melbourne University Law School, to facilitate cooperation Operations Workshop amongst military forces of the Asia Pacific Region in 7–9 May 2007 the research, training and implementation of the laws The APCML and the International Committee of the Red governing military operations. Cross (ICRC) held a joint workshop on ‘Law Enforcement The APCML aims to promote greater understanding of, in Peace Keeping Operations (PKO): Training Needs for and increased respect for, the rule of law in all aspects Civilian Policing’ at the Melbourne Law School on 7–9 of military affairs both within the Australian Defence May. The aim of the seminar was to provide a means of Force and amongst militaries in the Asia Pacific Region. It consolidating the experiences of police forces from the operates from both a military and a university node. Pacific and Asia gained in the framework of PKO in many civilian policing missions around the world. Its activities include: • preparing and delivering training programs; Biosafety & Biosecurity Workshop 28 May 2007 • organising conferences, workshops, seminars and lectures; The APCML hosted a visit coordinated by the Counter- Terrorism Branch of the International Security Division • promoting academic research; of the Department of Foreign Affairs & Trade (DFAT) on • developing relevant relationships within the Asia Pacific 28 May. Twelve regional scientists and technical experts Region; from Indonesia, Malaysia, Thailand and The Philippines • developing contacts and mutual exchanges with other attended a presentation by APCML Director Professor academic/military centres and with leading subject Tim McCormack and APCML Principal Research Fellow matter experts; and Dr Bob Mathews on the obligations on States Parties to the Biological Weapons Convention and the importance • providing support for deployments, particularly for peace of more effective national implementation to counter the operations. regional threat of bio-terrorism. The Director of the Centre is Professor Tim McCormack, Foundation Australian Red Cross Professor of International International Humanitarian Law Expert Meeting – Humanitarian Law. In 2007 the Deputy Director was CAPT Stockholm Dale Stephens CSM RAN. Bruce Oswald CSC (January 4–5 October 2007 to June), Professor Stuart Kaye (July to December) and An International Expert Meeting on International LTCOL Paul Muggleton served as Associate Directors of Humanitarian Law and Gender was held in Stockholm the Centre. Other Melbourne Law School staff associated on 4–5 October. Co-hosted by the Swedish Ministry for with the Centre are Dr David Blumenthal, Dr Helen Foreign Affairs, the Swedish Defence College, the Folke Durham, Ms Alison Duxbury, Dr Andrew Mitchell, Mr John Bernadotte Academy and the APCML, the event brought Tobin and Dr Tania Voon. Dr Bob Mathews is a Principal together experts and senior military representatives Research Fellow in the Centre. The Rt Hon Malcolm Fraser from across the world to discuss issues relating to IHL AC CH, Professorial Fellow of the University of Melbourne, and gender, including workshops on means of warfare, is attached to this Centre. methods of warfare and detainees. Dr Helen Durham, The Centre Administrator is Ms Cathy Hutton and enquiries APCML Senior Research Fellow, was a key-note speaker. can be directed to [email protected].

22 Melbourne Law School Research Report 2007 Section Head SectionAsia Pacific Subhead Centre for Military Law

Malcolm Fraser Inaugural Professorial Lecture Publications in 2007 25 October 2007 Protecting the Internally Displaced in Armed Conflict: The Rt Hon Malcolm Fraser AC CH, Professorial Fellow Do International Models of Intervention of the University of Melbourne, attached to the APCML, for Humanitarian Purposes Assist? gave his Inaugural Professorial Lecture on 25 October Elizabeth Cossor (APCML Monograph series) at the Melbourne Law School. In the remarks prefacing his lecture ‘Finding Security in Terrorism’s Shadow: the A detailed examination of the international protection Importance of the Rule of Law’, Professor Fraser stated mechanisms currently available to the specific context that he regarded it as both an honour and a privilege to be of internally displaced persons (IDPs) in armed conflict, associated with the APCML. an issue that affects some 50 countries across the international community Visitors in 2007 Major Research Projects in 2007 International Criminal Court (ICC) Prosecutor Dr Luis Moreno-Ocampo International Humanitarian Law Series — Martinus Nijhoff Publishers 10 August 2007 Martinus Nijhoff Publishers, based in Leiden, are the The APCML was invited by the Department of Foreign publishers of the International Humanitarian Law Series Affairs and Trade to host a visit to Melbourne by ICC — the world’s first series of authored and edited volumes Prosecutor Dr Luis Moreno-Ocampo. The Prosecutor gave in the English language dedicated to the international legal a public lunchtime seminar entitled ‘The New System of regulation of armed conflict. The series seeks to explore International Criminal Justice and the International Criminal the substantive issues of International Humanitarian Law. Court’ at the Melbourne Law School on 10 August. APCML Director Tim McCormack is editor-in-chief of Dr Nils Melzer, Legal Adviser, International the series with Professor Christopher Greenwood QC, Committee of the Red Cross (ICRC) Professor of Public International Law at the London School of Economics and Political Science. There are now twenty 22 August 2007 volumes in the series, of which the following six were Dr Melzer gave a lunchtime seminar entitled ‘Civilians on published in 2007: the Battlefield: Victims or Participants?’ during his visit on Vol 20 David Blumenthal and Tim McCormack (eds), 22 August. Since 2004, Dr Melzer has been responsible The Legacy of Nuremberg: Civilising Influence or within the ICRC’s Legal Division for an expert process Institutionalised Vengeance? aimed at clarifying international humanitarian law relating to the issue of civilian participation in hostilities. Vol 19 Jose Doria, Hans-Peter Gasser and M. Cherif Bassiouni (eds), The Legal Regime of the Professor Michael Schmitt, former APCML International Criminal Court Sir Ninian Stephen Visiting Scholar Vol 18 Héctor Olásolo, Unlawful Attacks in Combat 19–20 November 2007 Situations Professor Schmitt, Charles H Stockton Professor of Vol 17 Frits Kalshoven, Reflections on the Law of War: International Law at the Naval War College, Newport, Collected Essays Rhode Island made a brief return visit to the APCML. He gave a lunchtime seminar entitled ‘Direct Participation Vol 16 Ola Engdahl, Protection of Personnel in Peace in Hostilities’ on 19 November in which he discussed Operations: The Role of the ‘Safety Convention’ the increasingly challenging issue of defining the against the Background of General International circumstances in which civilians forfeit their non- Law combatant immunity by taking a direct part in hostilities. Vol 15 Michael Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines. Essays in Honour of Yoram Dinstein

Centres and Institutes 23 Asia Pacific Centre for Military Law

ARC Grant: Australia’s War Crimes Trials Law Reports Contact the APCML Series The Centre’s website can be accessed at: The APCML has been awarded a 3-year grant by the http://www.apcml.org Australian Research Council (ARC) to produce a series of Law Reports for Australia’s Post World War II War Crimes Trials, which were held 1945–1951 in eight locations in the Asia Pacific region. Professor Tim McCormack and Dr Helen Durham (APCML) will be working with Dr Gideon Boas (). The Partner organisations for the project are Defence Legal (partner investigator CAPT Dale Stephens) and the Australian War Memorial (partner investigator Dr Steven Bullard, Senior Historian). The project will start early in 2008. International Humanitarian Law in Air & Missile Warfare Manual The APCML, in conjunction with the Harvard Program on Humanitarian Policy and Conflict Research (HPCR), conducted the first International Humanitarian Law in Air and Missile Warfare Manual Regional Workshop in Sydney on 15–16 November. The Workshop was part of an international collaborative effort by the HPCR to produce a Manual on International Humanitarian Law Applicable to Air and Missile Warfare. Such a Manual has the potential to decisively influence global thinking on the conduct of aerial warfare and significantly shape operational policy in this area, and the Asia Pacific Region was selected to commence this review process, with further regional workshops planned for Africa and South America over the next year.

24 Melbourne Law School Research Report 2007 Centre for Employment and Labour Relations Law

The Centre for Employment and Labour Relations Law Centre Activities was established in the Faculty of Law in 1994. Its broad aims are to consolidate the teaching of, and research into, Labour Law Seminar Series labour law at the University of Melbourne, to contribute These free public seminars are intended to be of interest to the development of labour law teaching and research to a wide audience including academics, members of throughout Australia, and to engage with labour law the legal profession, and those engaged in the day to day scholars throughout the world. Centre Members are business of industrial relations and/or human resource responsible for teaching labour law subjects in the management. They provide a forum for the presentation undergraduate and graduate programmes in the Faculty and discussion of preliminary research results and to that of Law, with the graduate programme leading to both a end are designed both to be informative and to engender Masters Degree and/or a Graduate Diploma specialising critical discussion and debate. in labour law. The Centre’s work is guided by an Advisory • Orly Lobel, Associate Professor of Law at the University Board, whose members represent the legal profession, of San Diego on ‘Legal Loyalties: Reconciling Employee academia and key stakeholders in Australian labour Loyalty, Organisational Misconduct and Whistleblower relations law. The Centre is fortunate to receive financial Protection’ (18 December) support from a number of law firms in Melbourne that act • Professor Sy Moskowitz, Professor of Law at as its sponsors. Valparaiso Law School, Indiana USA on ‘Child Labour Centre Members in the Contemporary United States: Statutory and Enforcement Problems’ (6 December) Mr Colin Fenwick (Director), Ms Anna Chapman, Dr Sean Cooney, Ms Jessica Cotton, Associate Professor Beth • Dr Graeme Orr, Associate Professor at the University of Gaze, Dr John Howe, Ms Ingrid Landau, Ms Shelley Queensland Law School on ‘Mandatory Secret Ballots Marshall, Ms Charlotte Morgans, Mr Glenn Patmore and before Industrial Action: Practical Hurdle or Symbol of Dr Joo-Cheong Tham. Strike Action as a Last Resort’ (29 November) • Dr Anthony Forsyth, Senior Lecturer in the Department Centre Research of Business Law and Taxation, Monash University; Centre Members are engaged in research in diverse and Director of the Corporate Law and Accountability aspects of the broad field of labour law and labour market Research Group on ‘Freedom to Fire: Economic regulation. Areas of particular interest and expertise Dismissals under Work Choices’ (31 October) include the regulation of individual work relationships, • Ms , Federal Member for Labor, the Deputy discrimination in the labour market, the operation of courts Labor Leader and the Shadow Minister for Employment and other dispute resolution institutions, the regulation of & Industrial Relations and Social Inclusion, ‘A Fair and occupational health and safety, collective labour relations, Balanced Industrial Relations Policy for Australia’ comparative labour law, international labour standards, (24 September) and unemployment law and policy. The Centre is engaged • Carolyn Sutherland, Lecturer in the Department of in ongoing research on the constitution and regulation Business Law and Taxation at Monash University and of labour markets, both in Australia and abroad, with a consultant at Moores Legal on ‘All Stitched Up? The work being done on labour law in the Asia-Pacific region, 2007 Amendments to the Safety Net’ (31 August) Southern Africa, and Europe. The Centre also has a number of academic associates and research and teaching • Charles Woolfson, Professor of Labour Studies in the associates, both from within the Faculty of Melbourne Law School of Law at the University of Glasgow on ‘Post- School and from around Australia and the world. communism and the Regulation of Industrial relations in an Enlarged European Union’ (3 August) • Dr Joellen Riley, Associate Professor in the Law Faculty at the University of New South Wales on ‘Developments in Employment Contract Law’ (6 July) • Mark Wooden, Professorial Fellow and Acting Director of the Melbourne Institute on ‘Long Working Weeks in Australia: The Empirical Evidence’ (22 June)

Centres and Institutes 25 Centre for Employment and Labour Relations Law

• Gabrielle Marchetti, Senior Solicitor at JobWatch and Labour Law Policy Dialogue Dr Bronwyn Naylor, Senior Lecturer, Monash University Labour Law Policy Dialogue III on ‘Criminal Records and Employment: Is the System Working for You?’ (8 June) (12 September) • Peter Rozen, member of the Victorian Bar, and leading Workchoices: Reform or Retrogression in Labour specialist in Occupational Health and Safety Law on Relations? A View from the Other Side of the World with ‘Opting Out of State Occupational Health and Safety Professor Richard Freeman, Harvard University Laws: The Implications of Recent High Court Decisions’ Professor Freeman examined the potential impact of (18 May) Australia’s labour relations law on employee voice, work • Associate Professor Bill Hodge, Faculty of Law at well-being and economic efficiency, with comparison to the University of Auckland on ‘Good Faith Bargaining in recent and proposed changes in United States and United Practice: Lessons from the New Zealand Experience’ Kingdom labour laws. (3 April) Labour Law Policy Dialogue II • Sally Weller, Senior Research Fellow, Centre for (20 February) Strategic Economic Studies at Victoria University Challenging the Norms of Workplace Law and Shelley Marshall, Research Fellow, Centre for Employment and Labour Relations Law on ‘Outwork This roundtable was designed to foster engagement Regulation in Australia: Does it Work?’ (9 March) between scholars, community, political and trade union groups and business, with a view to devising alternatives Sponsors’ Seminar Series to Work Choices. The Centre for Employment and Labour Relations Law The roundtable explored several themes identified at the also coordinates a series of seminars exclusively for the Centre’s first labour law reform roundtable held in June members of the firms that are its Sponsors. 2006: forms of engagement, security of engagement and • Federal Magistrate John O’Sullivan, on ‘Practicing work/life conflict. Labour Law in the Federal Magistrates’ Court’ Partnerships at Work Round Table Discussions (6 September) and Seminar • Mr Michael McDonald, SC, Victorian Bar on ‘Damages (Thursday May 31 and Monday June 4) for Breach of Employment Contracts: An Analysis of Partnerships at Work is a research project, funded by (17 May) Recent Developments’ the ARC, examining the interaction between several key • Mr Nicholas Wilson and Mr Alfred Bongi, Office of factors in the creation and sustainability of ‘partnerships Workplace Services on ‘Protecting Workplace Rights at work’. As a component of this research, the Centre for after Work Choices: The Role of the Office of Workplace Employment and Labour Relations Law, in conjunction with Services’ (8 February) the Centre for Corporate Law and Securities Regulation hosted a Round Table Discussion and a Seminar. The Round Table Discussion considered the topic ‘Should Institutional Investors Use their Considerable Market Power to Influence the Human Resources Practices of Companies?’ The discussions were introduced by Michael O’Sullivan, President of the Australian Council of Superannuation Investors. Professor Ian Ramsay and Shelley Marshall presented 13 detailed case studies, with opinions and reactions invited from participants.

26 Melbourne Law School Research Report 2007 Centre for Employment and Labour Relations Law

Speaking on the topic ‘Employee Participation in a Academic Visitors Unionised Environment: What do Workers Want?’, Dr Anthony Forsyth, Senior Lecturer, Department of Christina Cregan, Associate Professor in Industrial Business Law and Taxation, Monash University Relations at the University of Melbourne, presented findings of a study which investigated the willingness Associate Professor Bill Hodge, Faculty of Law, of workers in a unionised environment to be involved in University of Auckland, New Zealand employee participation in the form of a company’s joint Associate Professor Orly Lobel, School of Law, consultation committee. University of San Diego The Future of Discrimination Law in Australia Professor Sy Moskowitz, Valparaiso University School of (16–17 November) Law Hosted by the Centre for Employment and Labour Dr Bronwyn Naylor, Senior Lecturer, Faculty of Law, Relations Law with support from the Academy of Social Monash University Sciences in Australia and the ARC, this workshop provided Associate Professor Graeme Orr, TC Beirne School of an opportunity for discussion of discrimination and law in Law, The Australia, drawing on the expertise and perspectives of Professor Joellen Riley, Faculty of Law, University of a range of researchers, practitioners and administrators New South Wales working in the field, with a view to developing a better understanding of discrimination law in Australia and its Carolyn Sutherland, Lecturer, Department of Business future. Law and Taxation, Monash University Fair Trade, Corporate Accountability and Beyond: Working Papers Experiments in ‘Globalising Justice’ Tess Hardy (19–20 December) Protection of Employees in a Transmission of Business: Hosted by the Centre for Employment and Labour What is left in the Wake of WorkChoices and Subsequent Relations Law with the support of the Fair Trade Statutory Amendments Association of Australia and New Zealand, and the Centre November 2007 for Governance of Knowledge and Development at the Australian National University, this two day workshop was Sally Weller a forum which enabled local and regional stakeholders and Power and Scale: The Shifting Geography of Industrial their international counterparts to come together in pursuit Relations Law in Australia of three specific goals: June 2007 • to learn lessons from international experience in developing and implementing supply chain governance Contact CELRL initiatives, with the aim of more clearly understanding The Centre’s website can be accessed at: what works and why in different contexts; http://celrl.law.unimelb.edu.au/. • to examine how the development of such initiatives is The Centre can be contacted by email at: currently playing out within Australia/New Zealand and [email protected]. the Asia Pacific Region, and explore the opportunities and challenges particular to this local and regional context; and • to lay the foundation for more effective and sustainable networks of collaboration and learning among companies, practitioners, activists and academics in Australasia and the Asia Pacific, as a means of promoting the expansion and strengthening of supply chain governance systems in this region.

Centres and Institutes 27 Centre for Comparative Constitutional Studies

The Centre for Comparative Constitutional Studies (CCCS) Key Research Activities is one of the Law School’s eleven specialist research In 2007 Centre members were actively engaged in centres, and is a focal point for research, scholarship, research work on key topics in Australian and comparative teaching and information about Australian constitutional public law. law and the constitutional law of other countries whose systems are most relevant to Australia. • Professor Cheryl Saunders resumed the directorship of the Centre in July 2007. During the first part of the The objectives of the Centre for Comparative Constitutional year, she was extensively engaged in preparation for Studies are: the VII World Congress of Constitutional Law, in her • to examine and evaluate the Australian constitutional capacity as President of the International Association system and to contribute actively to the debate on the of Constitutional Law. In April she visited China as the Australian system of government; guest of the China Law Society to deliver a series of • to examine and advise on the constitutional and legal lectures in universities and to professional groups on the framework for relations between levels of government, themes of the Congress: Rethinking the Boundaries of in theoretical and practical operation; Constitutional Law. Publications during the year included an analysis of the reasoning of the High Court in the • to introduce comparative constitutional concepts Workchoices decision (with other colleagues in the and knowledge on comparative constitutional Law School); an edited collection of essays in honour principles, institutions and practices into the Australian of Sir Ninian Stephen (with Tim McCormack); several constitutional debate; articles and chapters on the use of foreign law by • to develop and promote a sound understanding of the courts; and an introduction to the I.Con symposium on constitutional systems of countries in the neighbouring the work of Louis Favoreu. At the end of 2007, projects region, both in underlying theory and practical operation; in train include a re-examination of the methodology • to contribute to the debate on constitutional issues of constitutional interpretation in federal systems, elsewhere in the world in the light of the experience of generally and with particular reference to Australia; a Australia and the Asia-Pacific region; and book on the Australian Constitution for the Hart series on Constitutions of the World; and an edited collection • to provide a public and specialist resource on of essays on Global Values (with Dennis Davis and constitutional and comparative constitutional issues. Alan Richter), also to be published by Hart. In March, The Centre pursues these objectives through its activities – Cheryl’s academic achievements were recognised by research, teaching, information exchange, resource centre, her appointment to the position of Laureate Professor. consultancies and research collaboration. This is one of the University’s highest honours, awarded to its most distinguished academic staff. • Associate Professor Simon Evans, former Centre Director (January 2006–July 2007), became Faculty Deputy Dean on 1 July 2007. In May he visited China and Hong Kong as a Universitas 21 Fellow. He gave lectures on “Attitudes to Proportionality in Constitutional Review” and “Recent Developments in Australian Constitutionalism” at the Law Institute of the Chinese Academy of Social Sciences and Peking University and People’s (Renmin) University.

28 Melbourne Law School Research Report 2007 Centre for Comparative Constitutional Studies

• Deputy Director Associate Professor Carolyn Evans • Professor Cheryl Saunders, Associate Professor visited the United Kingdom in April to give an invited Simon Evans, Associate Professor Carolyn Evans and lecture at the on extreme Professor Adrienne Stone participated in the World speech. She also travelled to Hong Kong to talk on Congress of Constitutional Law Conference held in human rights and terrorism and to Vietnam to talk on Athens, Greece 11–15 June 2007. This event marked the religious freedom and public education. Carolyn also end of Cheryl Saunders’ highly successful Presidency of delivered papers in Athens, London, Oxford, Bristol the International Association of Constitutional Law which and Liverpool on topics concerned with her two ARC furthered the Centre’s connections with the global research projects: Parliaments and Protection of Human community in comparative constitutional scholarship. Rights, and Religious Freedom and Discrimination. • Professor Adrienne Stone continued her research Legislatures and Human Rights on freedom of expression, publishing an edited Since 2004 a major ARC funded Centre research collection (with Dr Katharine Gelber) entitled Free project, to be completed in 2008, has investigated how Speech and Hate Speech in Australia and delivering a Australian parliaments protect human rights. The principal paper on Freedom of Speech and Sedition at Law and investigators are Associate Professor Simon Evans and Liberty in an Age of Terror a major conference held at Associate Professor Carolyn Evans. the University of New South Wales in July. She was Simon and Carolyn have spoken on topics related to this awarded an ARC Discovery Grant to continue her work project throughout Australia and in many other parts of on Freedom of Expression for the period 2008–2012. the world. They have published articles and chapters on Her research on judicial review produced an article aspects of the project in Australia, the United Kingdom entitled Judicial Review without Rights to appear and Europe. They also ran a major conference on Human in the Oxford Journal of Legal Studies in 2008. She Rights Acts which is discussed later in this report. The also delivered a paper on the life of jurist and legal project is now finishing up with the publication of a book theorist Julius Stone at a Conference honouring his on Australian Bills of Rights (Lexis Nexis 2008). 100th Birthday at the and (with Simon Evans) delivered a paper on ‘Proportionality Conference and Balancing in Constitutional Law’ at the IACL World The 2007 Protecting Human Rights Conference, co-hosted Congress in Athens. by the CCCS, was a very successful and well attended • Dr Joo-Cheong Tham’s public law research included event. Over 170 people from government and legal fields work on an Early Career Researcher grant aimed at including former Prime Minister the Rt Hon Malcolm examining the impact of a statutory bill of rights on Fraser, Shadow Attorney General, Senator Joe Ludwig, Australian counter-terrorism laws. Under the auspices West Australian Attorney General, the Hon Jim McGinty of a British Academy Visiting Fellowship based at King’s and Mr Julian Burnside QC, listened to leading Australian College, University of London, he is furthering this and international speakers’ analyses of Australian Human research by undertaking a comparative study of the Rights Acts and the operation and future potential of the enactment of control orders in Australia and the United Charter and other Australian Human Rights Acts. Kingdom. In July, he gave an invited lecture at the Key speakers included Murray Hunt, Legal Adviser to the Victoria University of Wellington on Australian political United Kingdom Joint Committee on Human Rights The finance. Some of this lecture will be incorporated into a UK Human Rights Act: Key Lessons for Australia, Professor book on Australian political finance that will be published Sandra Liebenberg, Stellenbosch University, South in 2009 by UNSW Press. Africa Beyond Civil and Political Rights: Protecting Social, Economic and Cultural Rights under Bills of Rights, Senator Marise Payne, Commonwealth Parliament, Parliament and the Identification of Rights Issues and Professor David Kinley, University of Sydney, Executives and Bill of Rights: More than just Steak-Knives.

Centres and Institutes 29 Centre for Comparative Constitutional Studies

Public Lectures 15 November 2007 – ‘The Mason Papers’, a selection of 10 September 2007 – Dean’s Public Lecture: ‘Salvaging Sir Anthony Mason’s articles and speeches chosen and the Constitution for Europe’, Professor Ingolf Pernice, edited by Professor Geoffrey Lindell in consultation with Sir Humboldt University, Berlin Anthony, launched by Professor Cheryl Saunders, Director CCCS. Seminars and Roundtables 20 November 2007 – ‘Bills of Rights and Decolonization: 20 March 2007 – ‘The Rule of Law in Blair’s Britain,’ The Emergence of Domestic Human Rights Instruments in Professor Adam Tomkins, Professor of Public Law, Britain’s Overseas Territorie,’ by Dr Charles Parkinson and the University of Glasgow, Scotland launched by Justice Hayne 9 May 2007 – ‘Cultural Wars and Constitutional Law: Visitors to the Centre Australia and the United States Compared’, Dr Amos Jones, Fulbright Postgraduate Award holder, Harvard Dr Amos Jones, Fulbright Postgraduate Award holder, Law School Harvard Law School, 1 September 2006–31 May 2007 24 May 2007 – ‘The German Federalism Reform Dr Dirk Hanschel, Senior Research Assistant and the (Part I) – A New Distribution of Legislative Powers?’, Chair of German and Comparative Public Law Dr Dirk Hanschel, University of Manheim, Germany International Law and European Law, University of 7 June 2007 – ‘Approaches to Interpretation of the Federal Mannheim, Germany, 10 April–10 June 2007 Provisions of the German Constitution,’ Dr Dirk Hanschel, Professor Kent Roach, University of Toronto Faculty of University of Manheim, Germany Law, Canada, 9–10 July 2007 10 July 2007 – ‘Judicial Activism and Democratic Dialogue Professor Christina Murray, The University of Cape in Canada,’ Professor Kent Roach, University of Toronto Town, South Africa, 18 July–24 July 2007 Faculty of Law, Canada Professor Elisabeth Zoller, Director of the Centre for 7 August 2007 – ‘The Human Rights Act in the United American Law, Université Panthéon-Assas (Paris II), Kingdom,’ Mr Rabinder Singh QC and Dr Angela Ward, France, 19 September–25 September 2007 the London Bar, the United Kingdom Professor Sandra Liebenberg, Harry Oppenheimer 9 August 2007 – CCCS Case Discussion: A Free and Chair in Human Rights Law, Department of Public Law, Confident Society? A Discussion on the Recent High Stellenbosch University, South Africa, Court Decision in Thomas v Mowbray [2007] HCA 33 24 September–30 September 2007 (2 August 2007) 18 September 2007 – ‘The Concept of Public Law,’ Professor Elisabeth Zoller, Universite Pantheon-Assas (Paris II), France 9 October 2007 – CCCS Case Discussion: Roach v Electoral Commissioner [2007] HCA 43 (26 September 2007) 9 October 2007 – ‘An Analysis of the Office of Attorney General in Australia and Directions for the Future,’ Fiona Hanlon, PhD Candidate, CCCS, Melbourne Law School. Fiona has since been awarded the degree.

30 Melbourne Law School Research Report 2007 Centre for Comparative Constitutional Studies

Publications Management Centre members have published numerous books, articles Director: Professor Cheryl Saunders AO and chapters on constitutional law during 2007. Some Deputy Director: Associate Professor Carolyn Evans highlights include: Administrator: Dr Madeline Grey International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, by Dr Michelle Foster. Contact the CCCS This is the first book to consider the cutting edge issue of refugee claims based on the deprivation of socio-economic The Centre’s website can be accessed at: rights and will be essential reading for refugee advocates, http://cccs.law.unimelb.edu.au policy makers and refugee decision-makers. The Centre can be contacted by email at: Work Choices: The High Court Challenge published [email protected] by Thomsons includes a comprehensive analysis of the constitutional and workplace implications of the decision by experts from the University of Melbourne’s Law School including CCCS Director Professor Cheryl Saunders, and members Associate Professor Simon Evans and Megan Donaldson. The other authors are CELRL Director Colin Fenwick and Joo-Cheong Tham. Hate Speech and Freedom of Speech in Australia edited by CCCS member Professor Adrienne Stone and Katharine Gelber. This book examines questions and developments arising out of the decision by parliaments throughout Australia to pass anti-vilification laws.

Centre and Instututes 31 Centre for Corporate Law and Securities Regulation

Overview Publications The Centre for Corporate Law and Securities Regulation In 2007, the following books and research reports were (CCLSR) commenced in January 1996 in recognition of published by Centre members: the growing importance of corporate law and securities regulation nationally and internationally, and in recognition Books of the University of Melbourne’s strength in these areas. • Hanrahan, P, Funds Management in Australia: Officers’ Duties and Liabilities, LexisNexis Butterworths (2007) The objectives of the Centre and its members are: • Austin, R, Ramsay, I, Ford’s Principles of Corporations • to undertake and promote research on corporate law Law, 13th edition, LexisNexis Butterworths (2007) and securities regulation; • Hanrahan, P, Ramsay, I, Stapledon, G, Commercial • to undertake the teaching of corporate law and Applications of Company Law, 8th edition, CCH securities regulation subjects within the Faculty of Law Australia, (2007) and the Faculty of Economics and Commerce at the University of Melbourne and to develop and promote Research Reports innovative teaching methods and teaching materials; • Jones, M, Marshall, S, Mitchell, R, Ramsay, I, Company • to host conferences to disseminate the results of Directors’ Views Regarding Stakeholders, Centre for research undertaken under the auspices of the Centre Corporate Law and Securities Regulation and Centre for or in other programs associated with the Centre; Employment and Labour Relations Law (2007) • to develop and promote links with academics in other • Landau, I and Ramsay, I, Employee Share Ownership Australian universities and in other countries who Plans in Australia: The Corporate Law Framework, specialise in corporate law and securities regulation; Centre for Corporate Law and Securities Regulation (2007) • to establish and promote links with similar bodies, internationally and nationally, and provide a focal point • Landau, I, Mitchell, R, Ramsay, I and O’Connell, A, in Australia for scholars in corporate law and securities Employee Share Ownership: A Review of the Literature, regulation; Centre for Corporate Law and Securities Regulation and Centre for Employment and Labour Relations Law • to promote close links with peak organisations involved (2007) in corporate law and securities regulation; • Landau, I, Mitchell, R, Ramsay, I and O’Connell, A, • to promote close links with those members of the legal On Overview of Existing Data on Employee Share profession who work in corporate law and securities Ownership in Australia, Centre for Corporate Law and regulation; and Securities Regulation and Centre for Employment and • to attract students of the highest calibre to the graduate Labour Relations Law (2007) program and provide opportunities for their involvement • Anderson, K and Marshall, S, Do Institutional Investors in corporate law research projects. aim to Influence the Human Resource Practices of The activities of the Centre include teaching (members Investee Companies?, Centre for Corporate Law and of the Centre teach or coordinate the teaching of 39 Securities Regulation and Centre for Employment and specialist subjects), maintaining a strong research program, Labour Relations Law (2007) conducting conferences and seminars and publishing a • Fenwick, C and Sheehan, K, Seven: The Corporations monograph series. Act, Corporate Governance, and Termination Payments The Director of the Centre is Professor Ian Ramsay. to Senior Employees, Centre for Corporate Law and Securities Regulation and Centre for Employment and Labour Relations Law (2007)

32 Melbourne Law School Research Report 2007 Section Head SectionCentre for Subhead Corporate Law and Securities Regulation

• Anderson, K, Jones, M, Marshall, S, Mitchell, R and ASIC v Citigroup – The Decision and its Implications Ramsay, I, Evaluating the Shareholder Primacy Theory: (17 July 2007 Melbourne, 18 July 2007 Sydney) Evidence From a Survey of Australian Directors, Centre Speakers: Associate Professor Pamela Hanrahan, Deputy for Corporate Law and Securities Regulation and Centre Director, Centre for Corporate Law and Securities for Employment and Labour Relations Law (2007) Regulation, University of Melbourne (Sydney and • Lipton, P, A History of Company Law in Colonial Melbourne); Michael Schoenberg, Partner, Allens Arthur Australia: Legal Evolution and Economic Development, Robinson (Melbourne); John Warde, Partner, Allens Arthur Centre for Corporate Law and Securities Regulation Robinson (Sydney) (2007) ASIC v Citigroup – The Issues and Their Significance • Fenwick, C and Sheehan, K, Share-Based Remuneration (5 June 2007 Sydney, 7 June 2007 Melbourne) and Termination Payments to Company Directors: What are the Rules?, Centre for Corporate Law and Securities Speakers: Associate Professor Pamela Hanrahan, Deputy Regulation and Centre for Employment and Labour Director, Centre for Corporate Law and Securities Relations Law (2007) Regulation, University of Melbourne (Sydney and Melbourne); Michael Schoenberg, Partner, Allens Arthur • O’Connell, A, Employee Share Ownerships in Australia – Robinson (Melbourne); John Warde, Partner, Allens Arthur the Taxation Law Framework, Centre for Corporate Law and Securities Regulation (2007) Robinson (Sydney) Members of the Centre for Corporate Law also published a Employee Participation in a Unionised Environment: significant number of journal articles in 2007. What Do Workers Want? (4 June 2007) Seminars and Conferences Speaker: Associate Professor Christina Cregan, Associate A significant part of the Centre’s activities is the holding Professor in Industrial Relations, Department of of seminars/conferences on important issues. In 2007 the Management and Marketing, the University of Melbourne Centre held the following seminars/conferences: This seminar was co-hosted with the Centre for Financial Sector Development in East Asia and Employment and Labour Relations Law the Role of Law Should Institutional Investors Use Their Considerable (23 August 2007) Market Power to Influence the Human Resource Speaker: Associate Professor Douglas Arner Director, Practices of Companies? Asian Institute of International Financial Law (AIIFL), (31 May 2007) Faculty of Law, University of Hong Kong This seminar was Speakers: Professor Ian Ramsay, Harold Ford Professor of co-hosted with the Asian Law Centre Commercial Law, Director of the Centre for Corporate Law The Takeovers Panel – Consequences of and Securities Regulation, the University of Melbourne; the Alinta Litigation Shelley Marshall, Research Fellow, Corporate Governance (19 July 2007 Melbourne, 21 August 2007 Sydney) and Workplace Partnerships Project, the University of Melbourne Speakers: George Durbridge, Special Advisor, Freehills (Melbourne and Sydney); Norman O’Bryan QC, Public Enforcement of Securities Laws Commercial and Company Law Barrister, Victorian Bar (29 May 2007) (Melbourne and Sydney); Professor Cheryl Saunders, Speaker: Professor Howell Jackson, Professor of Law, Director, Centre for Comparative Constitutional Studies, Harvard Law School, United States University of Melbourne (Sydney and Melbourne)

Centres and Institutes 33 Centre for Corporate Law and Securities Regulation

No Seat at the Table – How Corporate Governance Corporate Law Judgments website and Law Keep Women Out of America’s Boardrooms The Centre also hosts the Corporate Law Judgments (7 May 2007) website, which contains corporate law judgments of the Speaker: Professor Douglas Branson, University of Australian State and Federal courts. As of December 2007, Pittsburgh there were almost 5,500 judgments on the website. Contesting Accountability and Legitimacy in Non- Contact the CCLSR State Regulatory Regimes The Centre’s website can be accessed at: (4 April 2007) http://cclsr.law.unimelb.edu.au/. Speaker: Professor Julia Black, London School of The Centre can be contacted by email at: Economics and Political Science [email protected]. This seminar was co-hosted with the Centre for Employment and Labour Relations Law 2007 Corporate Governance Conference (16 March 2007) Speakers: Kevin Murphy, Professor of Finance and Business Economics, USC Marshall School of Business and Professor of Business and Law, USC Law School; Jeremy Cooper, Deputy Chairperson, ASIC; Eric Mayne, Chief Supervision Officer, Australian Stock Exchange Limited; Andrew Sisson, Managing Director, Balanced Equity Management; Ken Jarrett, Director CJT Capital; Richard Searby QC; Linda Nicholls, President, Australian Institute of Company Directors (Vic Div), Deputy Chairman, Healthscope Limited and Director, St George Bank and Sigma Pharmaceutical Group; John Brakey, Head of Alternative Investments, Macquarie Bank; Doug Little, CEO, Constellation Investment Management; Bob Van Munster, Tyndall Investment Management; Richard Phillips, Managing Director, Caliburn Partnership This conference was co-hosted with Institutional Shareholder Services Law and the Market: The Impact of Enforcement (12 March 2007) Speaker: Professor John Coffee, Adolf A Berle Professor of Law, Columbia University

34 Melbourne Law School Research Report 2007 Centre for Media and Communications Law

The Centre for Media and Communications Law (CMCL) Current Research Projects is a centre for the research, discussion and teaching of all In 2007, the CMCL was involved in four major research aspects of media and communications law and policy. projects: The Centre for Media and Communications Law: • ARC Discovery Project: The Future of Television: • undertakes large scale research projects; Australian Legal Protection of Digital Broadcast Content • holds public seminars about legal and regulatory 2005–2007. Chief Investigator: Andrew Kenyon. developments; Researchers: Robin Wright and Jason Bosland. • supports research visits from Australian and international • ARC Discovery Project: The Media and ASEAN academics, lawyers and policy makers; and Transitions: Defamation Law, Journalism and Public Debate in Indonesia, Malaysia and Singapore 2006– • supervises teaching and research in media and 2009. Chief Investigators: Andrew Kenyon, Tim Lindsey, communications law within the Law School’s teaching Tim Marjoribanks, Amanda Whiting. Researcher: programs. Naomita Royan. The CMCL has a team of Directors from the Law School, • ARC Linkage Project: Cultural Collections, Creators Associates from across the University of Melbourne, and Copyright: Museums, Galleries, Libraries and and Research Staff. It is assisted by an Advisory Board Archives and Australia’s Digital Heritage 2006–2009. representing a wide variety of expertise in media and Chief Investigators: Andrew Christie, Andrew Kenyon. communications industries and legal practices, and Researcher: Robin Wright. receives support from the Law School as well as external sponsors and research partners. • Legal Controls on Cross-Border Advertising and the WHO Framework Convention on Tobacco Control. Chief It is the editorial base for the Media & Arts Law Review, a Investigators: Andrew Kenyon, Jonathan Liberman leading refereed journal in the field. (VicHealth Centre for Tobacco Control). Researcher: Jason Bosland. Staff The Director is Associate Professor Andrew Kenyon. Major Events The Deputy Directors are Associate Professor Megan Conference: ‘The Courts and the Media’ conference held Richardson and Professor Dan Hunter. Amy Harrington jointly with the Australian Press Council which brought is the Centre Administrator and Jason Bosland, Naomita together lawyers, journalists and academics involved in the Royan and Robin Wright are Research Fellows. operation, reporting and analysis of the courts in Australia. Speakers on open justice, suppression orders, journalists’ sources and freedom of information included the Hon Justice Philip Cummins (Supreme Court of Victoria), Peter Gregory (Chief Court Reporter, The Age), Michael McKinnon (Seven Network), Professor Brian Murchison (Washington and Lee University, Virginia), and Justin Quill (Corrs Chambers Westgarth) (Friday 27 July 2007, Melbourne Law School) International Conference: Australia and New Zealand Communication Association (ANZCA) 2007 Conference: Communications, Civics, Industry, held jointly with the Media Studies Program, La Trobe University. Featured topics included the role of public service media; new media distribution technologies in communication PR, advertising and civil society; and organisational, interpersonal and intercultural communication. The keynote speaker was Professor Toby Miller, (University of California Riverside) while Professor Cynthia Stohl (Department of Communication, University of California Santa Barbara) made a featured presentation. The conference also

Centres and Institutes 35 Centre for Media and Communications Law

included a plenary panel on the planned Research Quality ‘Defamation and Opinion under US and Anglo-Australian Framework with Professor Mandy Thomas (Pro Vice- Law’, Brian Murchison, Charles S Rowe Professor of Law, Chancellor ANU), Professor Graeme Turner (University of Washington & Lee University (17 July 2007: Allens Arthur Queensland) and Professor Brad Haseman (Queensland Robinson, Sydney; 19 July 2007: Melbourne Law School) University of Technology) (5–6 July 2007, Melbourne Law ‘The distribution of everything: new p2p logics in School; Associated Seminar: Public Service Broadcasting in production, governance, and property’, Michel Bauwens, Asia and the Pacific, 7 July 2007) presented by the CMCL and the Program in Media and International Conference: LSAANZ — Law and Communications, Faculty of Arts, University of Melbourne Society Association of Australia and New Zealand 2007 (31 July 2007, Melbourne Law School) Conference ‘Markings: sites of analysis, discipline, ‘Futures without Frontiers of Fuss: Ian Walden and Kim interrogation’, hosted jointly with the Institute for Anderson’, presented by the CMCL and the International International Law and the Humanities. Plenary keynote Institute of Communications, Australian Chapter speakers and panellists were: Sadaf Aziz (Lahore University (9 August 2007, Baker & McKenzie, Sydney) of Management Sciences), Eve Darian-Smith (University of California Santa Barbara), William MacNeil (Griffith ‘UK Media Law: 2007 Update’, John Battle, Head University), Shaun McVeigh (Melbourne Law School) and of Compliance at ITN, London (13 November 2007, Rebecca Scott Bray (University of Sydney) Melbourne Law School; 14 November 2007, Corrs (29–30 November 2007, Melbourne Law School) Chambers Westgarth, Sydney) Workshop: ‘MediaCommLaw 2007: Landmarks in ‘Workshop on Law and Ethnography’, workshop for Australian Intellectual Property’, a by-invitation seminar research students, Eve Darian-Smith, Professor of Law and for academics and lawyers to workshop chapters for a Society and Anthropology at the University of California, forthcoming collection on key Australian IP cases, to be Santa Barbara (26 November 2007) published by Cambridge University Press and edited by ‘Marks of Disobedience’, Julian Burnside QC, Juliet Andrew Kenyon, Megan Richardson and Sam Ricketson Rogers, Associate Professor Peter Rush, Patrick Wolfe, (7 December 2007, Melbourne Law School) seminar associated with 2007 LSAANZ conference (28 November 2007) Seminars ‘Developing Issues in Entertainment Law and Intellectual Selected Publications Property in the United States’, Professor Paul Marcus, The full list of publications is in the Published Research William and Mary School of Law, Virginia, US section of this report. (16 February 2007: Melbourne Law School) • Kenyon,A (ed), TV Futures: Digital Television Policy in ‘Television Industry Forum: Legal Protection of Digital Australia, Melbourne University Press (2007) Broadcast Content—Technology, Copyright, Law’, Chris • Kenyon, A, ‘Not Seeing Justice Done: Suppression Hibbert, Digital Video Broadcasting Project (4 April 2007: Orders in Australian Law and Practice’ (2007) 27 Corrs Chambers Westgarth, Sydney and Melbourne) Adelaide Law Review 279–310 ‘Switching to Digital Television: UK Experience and • Hudson, E, Kenyon, A and Christie, A, ‘Modelling Lessons for Digital Australia’, Michael Starks, Associate Copyright Exceptions: Law and Practice in Australian in the Programme in Comparative Media Law and Policy, Cultural Institutions’ in F Macmillan (ed), New Directions University of Oxford (5 June 2007: Melbourne Law School; in Copyright Law, Edward Elgar (2007), 279–304 6 June 2007: Mallesons Stephen Jaques, Sydney) • Richardson, M and Duke, A, ‘Hello!, Nike and Kazza: “Know thine enemy as thyself’: Discerning friendly Bargaining in the Shadow of Intellectual Property Law’ neighbour from terrorist foe’, Professor Clive Walker, (2007) 18 Entertainment Law Review 56–61 Centre for Criminal Justice Studies, University of Leeds (29 June 2007, Melbourne Law School) • Kenyon, A, ‘Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice’ ‘Making Copyright Safe for Parody and Satire’, Graeme (2007) 29 Sydney Law Review 651–682 Austin, J Byron McCormick Professor of Law, University of Arizona (2 July 2007, Melbourne Law School)

36 Melbourne Law School Research Report 2007 Centre for Media and Communications Law

Presentations Research Visitor Program Bosland, J, ‘Media Policy-Making in Australia: the 2006 The CMCL Research Visitors Program supports visits Media Reforms in Perspective’, Communications Policy by academics, practising lawyers and media industry and Research Forum, University of Technology Sydney, professionals. In 2007 the research visitors were: 24–25 September 2007 John Battle, ITN, London Bosland, J, Richardson, M and Hunter, D, ‘Copyright and Professor David Caudill, Villanova University the New Street Literature’, presented at the Intellectual Professor Jane Ginsburg, Columbia Law School Property and Creativity/Innovation—Critiques and Associate Professor Sonia Katyal, Fordham University, Alternatives Workshop, Bond University, Gold Coast, New York 29 November 2007 Professor Brian Murchison, Washington & Lee Kenyon, A, ‘Speaking of Journalism: Legal and Media University Conceptions of Public Speech’, presented at the annual Michael Starks, Centre for Socio-Legal Studies, conference of the UK-based Media, Communications University of Oxford and Cultural Studies Association (MeCCSA) at Coventry Professor Ian Walden, University of London University, UK, 11 January 2007 Professor Clive Walker, University of Leeds Professor Jane Winn, University of Washington Law Kenyon, A, ‘Comparative Defamation and Empirical Legal School Research’, presented at Faculty Colloquium, Lewin College of Law, University of Florida, US, 26 January 2007 Media & Arts Law Review Kenyon, A, ‘Australian Defamation Law and Practice’, The Media & Arts Law Review is a quarterly, refereed invited seminar paper at 5 Raymond Buildings (5RB is a journal examining all areas of media and arts law, including: leading London set of defamation barristers), Communications, Contempt, Copyright, Cultural Heritage, 20 September 2007 Defamation, Digitisation, Entertainment, Free Speech, IP, Journalism, Privacy, and the Public Interest. Kenyon, A and Bosland, J, ‘Australian Content after Broadcasting’, Communications Policy and Research The Review has a distinguished Editorial Board and Forum, University of Technology Sydney, publishes independently refereed articles, from Australian 24–25 September 2007 and international authors, as well as conference reports and book reviews. It also includes regular update reports Kenyon, A and Marjoribanks, T, ‘The Future of ‘Responsible about media and arts law developments from a team Journalism’: Defamation Law, Public Debate and News of International Contributing Editors. The updates offer Production’, The Future of Newspapers conference, Centre a snapshot of matters such as case law, legislation, law for Journalism Studies, Cardiff University, Wales, reform, international conventions, and changes in industry 12–13 September 2007 self-regulation. Reports include the US, Canada, the UK, Royan, N, ‘Increasing Press Freedom in Indonesia: The Africa, Hong Kong, the European Union, New Zealand and Abolition of the ‘Insulting the President or Vice President’ Australia. Criminal Provisions and its Effect on the Media’, 16th Asian The Media & Arts Law Review is published by Lexis Nexis. Media Information and Communication Centre Annual Articles published in 2007 included: Conference, Singapore, 26 June 2007 • Baker, R, The Rookie and the Silk: Learning the ‘Ordinary Wright, R, ‘Copyright in the Digital Age: Recent Changes Reasonable Person’ in Defamation Law to Australian Law’, Museum Shops Association of Australia 2007 Conference, Sydney • Banerjee, A, Contempt of Court and Criticism of the Judiciary: Tales of Discord between Courts and the Wright, R, ‘So you want to tape off TV? Implications in Media in India the Digital World’, Communications Policy and Research Forum, University of Technology Sydney, • Bond, C, Reconciling Crown Copyright and Reuse of 24–25 September 2007 Government Information: An Analysis of the CLRC Crown Copyright Review

Centres and Institutes 37 Centre for Media and Communications Law

• Cheung, A, The Regulation of Chinese Women’s Contact the CMCL Sexuality on the Internet The Centre’s website can be accessed at: • Christie, A, Cultural Institutions, Digitisation and http://www.law.unimelb.edu.au/cmcl. Copyright Reform The Centre can be contacted by email at: • Gould, K, The More Things Change, The More They Stay [email protected]. the Same … or do They? • Handsley, E, Nehmy, C, Mehta, K and Coveny, J, Media, Public Health and Law: A Lawyer’s Primer on the Food Advertising Debate • Johnston, M, Should Australia Force the Square Peg of Privacy into the Round Hole of Confidence or Look to a new Tort? • Loveland, I, Reynolds Privilege Re-considered? • Maxwell, E, The Waste Land: The Rights of Editors in Australian Copyright Law • Morgan, O, Graffiti – Ownership and Other Rights • Ng, Y, Global Soul, Local Seoul: The Ebb and Flow of Forces in Global Copyright • O’Brien, D, Blogs and the Law: Key Legal Issues for the Blogoshphere • Patel, S, Cheque-book Journalism in the US and the UK: Fair Trial v Free Press • Ricketson, S, Trade Mark Liability Issues Arising out of Internet Advertising • Sainsbury, M, Parody, Satire and Copyright Infringement: The Latest Addition to Australian Fair Dealing Law • Sauer, A, Protecting the Copyright Balance in Cyberspace • Selvadurai, N, Voices of Change — The Regulation of Voice over Internet Protocol Services • Walden, I, Regulating Broadcasting in a Converging Environment: Without Frontiers and Without a Fuss

38 Melbourne Law School Research Report 2007 Centre for Resources, Energy and Environmental Law

The Centre for Resources, Energy & Environmental Law Members (CREEL) was established in 1986. Until 1996 it was known The members of the Centre in 2007 were: Professor as the Centre for Natural Resources Law, and the teaching Richard Garnett, Associate Professor Lee Godden, program was focused upon laws relating to mining, Associate Professor Maureen Tehan, Associate Professor petroleum and water resources; the legal structure and Jackie Peel and Dr Amir Kordvani. financing of major resources projects; and some aspects of environmental regulation. Conferences/Seminars In 1996 substantial changes were made to extend the 22 March 2007, The Centre hosted a seminar entitled: program. Subjects were added to cover contemporary ‘The Identifiability Bias in Environmental Law’, presented issues of national and international importance. These by Professor Shi-Ling Hsu, University of British Columbia, include production and distribution of energy; development Canada. The seminar explored the idea that people have of infrastructure; environmental impact of energy, stronger emotions regarding identifiable individuals or resources and infrastructure projects; and indigenous groups rather than abstract ones and that environmental rights over land and waters. Studies focus upon the inter- regulation has been hindered by the high profile of relationship of government policies, legal and regulatory individual victims of such regulation. regimes and administrative practices. 22 & 23 May 2007, the Centre hosted a conference Many of the subjects are highly relevant to international entitled ‘Water, Energy and Climate Change Futures: students as well as Australian students. The increased Australia and China’. The Conference was a collaborative scope of the graduate teaching program is also reflected and interdisciplinary forum organised by the Centre for in CREEL’s research, publishing, seminars and related Resources, Energy and Environmental Law, the Asian activities. Law Centre, and the Office for Environmental Programs at The University of Melbourne in conjunction with the Purposes and Objectives Australia-China Centre on Water Resources Research. The purposes and objectives of CREEL are: The Conference was opened by Mr Chris Bell, from • to promote graduate teaching, research, publications the Environment Protection Authority Victoria, who is a and discussion about legal, regulatory and policy member of the OEP Community and Industry Advisory frameworks for: Board. The focus of the first day was on ‘Energy’ and featured leading Chinese experts on energy and resources ● the production and distribution of energy law, who are involved in the development of future ● the provision of infrastructure regulatory frameworks on energy and the pressing issue of ● the development of natural resources climate change. ● protection of the environment ● recognition of indigenous rights and interests in land Distinguished speakers from China included Professor and waters. Wang Mingyuan, Executive Director, Centre for • to engage in these activities with respect to Environmental, Natural Resources and Energy Law, contemporary developments and issues in Australia, Tsinghua University Law School, and Professor YE Rongsi, Asia/Pacific, and other selected regions; Chairman, Energy Law Academy, China Law Society. The second day of the conference focused on ‘Water’. • to extend the Law School’s specialised collection of Professor John Langford opened with a joint plenary, research and teaching materials relating to energy, together with the Chinese Director of the Australia-China natural resources, environmental law and native title; Centre on Water Resources Research, Professor Xia Jun, • to strengthen existing links and establish new links from the Chinese Academy of Sciences. In this regard, with other centres in Australia and overseas engaged the conference built on the initiatives developed at the in equivalent activities (eg the Water Research Centre first Australia-China Water Resources Workshop, held in at the University of Melbourne or the Australian Mining February 2006 at the University of Melbourne. Leading and Petroleum Law Association); and Australian and Victorian water experts covered areas • to encourage persons from industry, professions, including: water allocation and conservation policies, investment institutions, government and universities groundwater, healthy rivers and integrated catchments in Australia and overseas to participate in the Centre’s management, made presentations throughout the day. activities. Chinese delegates also visited the Latrobe Valley to view power generation and water storage sites. The conference was a collaborative endeavour working towards the sharing

Centres and Institutes 39 Centre for Resources, Energy and Environmental Law

of knowledge and experiences as both China and Australia • Peel, J, ‘The Report of the Prime Ministerial Task Group grapple with the challenge of securing energy and water on Emissions Trading: the Good, the Bad and the Ugly’ futures in both countries in light of climate change impacts. Environmental & Planning Law Journal (forthcoming) 23 August 2007, the Centre hosted a seminar titled • Peel, J, ‘International Law and the Legitimate ‘Energy Law and Sustainable Development’ presented Determination of Risk: Is Democratising Expertise the by Professor Adrian Bradbrook from the University of Answer?’ (2007) 38 Victoria University of Wellington Law Adelaide. The main of idea of the presentation was to Review 363–380 identify and establish sustainable energy as the central issue that must be addressed in the legal debate on Conference/Seminar Presentations sustainable development rather than leaving it at its • Godden, L, ‘Water for the Environment in a Federal periphery, where it has languished to date. It was further System: Australia’s Election Issue 2007’, paper delivered argued that in order to achieve this goal a comprehensive at ‘Water: Australia’s Election Issue 2007?’ Centre for legal management regime for achieving a sustainable Public Policy University of Melbourne, 27 March 2007 energy future needs to be devised. • Godden L, ‘Property in Urban Water: Private Rights and Key Research Activities Public Governance’ People Power Water Academy of Social Sciences Symposium (ANU), 20 November 2007 Publications • Godden, L, ‘Property, Privatisation and Water: Whither • Godden, L and Tehan, M ‘Translating Native Title to Environmental Sustainability?’ University of New South Individual ‘Title’ in ‘Australia: Are Real Property Forms Wales Law School Seminar, 25 July 2007 and Indigenous Interests Reconcilable?’ in E Cooke (ed), Modern Studies in Property Law IV, Hart Publishing • Godden, L, ‘EIA and Energy–Water Interactions’ Climate (2007), 263 –294 Change Futures ‘Water and Energy?’ Conference, Law School, the University of Melbourne, 22–23 May 2007 • Godden, L and Peel, J, ‘The Environment Protection and Biodiversity Conservation Act 1999 (Cth): Dark Sides • Kordvani, A, ‘An Assessment of the Efficiency of the Of Virtue’ (2007) 31 Melbourne University Law Review Emissions Market Regulation under the European 106–145 Emissions Trading System’, paper presented at the 31st National Conference of the Australian Mining and • Godden, L, ‘The Invention of Tradition: Property Law as Petroleum Law Association (AMPLA), Gold Coast, a Knowledge Space for the Appropriation of the South’ 11 October 2007 (2007) Griffith Law Review 375–410 • Tehan, M, ‘Indigenous/Settler Land Relations and The • Godden, L, ‘Law in the Schism: Moving Beyond Property Paradox’ Melbourne Law School, University of The Carbon Economy In Australia’ in B Barton et al. Melbourne, September 2007 Beyond the Carbon Economy, Oxford University Press (forthcoming 2008) Submissions to Government • Godden, L, ‘Property in Urban Water: Private Rights • Submission to National Water Commission: First and Public Governance’, in P Troy, People, Power, Water, Biennial Assessment of the National Water Initiative, (submitted to University of NSW Press) February 2007 • Peel, J, ‘The Role of Climate Change Litigation in • Godden, L and Jamieson, N, Submission to the Food Australia’s Response to Global Warming’ (2007) 24 Bowl Modernisation Project Steering Committee and Environmental and Planning Law Journal 90–105 Victorian Government Public Comment Process, • Peel, J, ‘Ecologically Sustainable Development: More 23 October 2007 than Mere Lip-Service?’ (2008) 12 Australasian Journal of Natural Resources Law and Policy 1–34 • Peel, J, ‘When (Scientific) Rationality Rules: (Mis) Application of the Precautionary Principle in Australian Mobile Phone Tower Cases’ (2007) 19 Journal of Environmental Law 1–18

40 Melbourne Law School Research Report 2007 Centre for Resources, Energy and Environmental Law

Activities Associated with ARC Linkage Database Project The project has developed and maintains the Agreements Associate Professors Lee Godden and Maureen Tehan are Treaties and Negotiating Settlements (ATNS) database, a two of the chief investigators in the inter-disciplinary ARC major public database of agreements between indigenous Linkage Project: The Implementation of Agreements and and non-indigenous entities in Australia and elsewhere. Treaties with Indigenous and Local Peoples in Postcolonial The database was recently awarded a Knowledge Transfer States. The Industry Partners are Rio Tinto Pty Ltd and the Award for excellence by the University of Melbourne. Office of Indigenous Policy Co-ordination. Graduate Research Student The following activities form part of the work in that project: The project funds a doctoral student in the Law School, Angus Frith whose PhD is titled ‘Sustainable Indigenous • Mining, Petroleum, Oil and Gas Symposium: Indigenous entities for making agreements’. The thesis is examining Participation in the Resource and Extraction Industry – the proposition that Aboriginal and Torres Strait Islander July 9 & 10 2007, Broome. corporations are more effective, efficient and sustainable The Symposium focused on trends in Indigenous if their structures and operations mirror the laws and participation in the mining, petroleum, oil and gas customs of the native title holding or other group that is industries. Participants included a group of indigenous seeking the benefits of incorporation. and non-indigenous practitioners, scholars and industry and government representatives. Selected papers from Contact the CREEL the Symposium will be published in a special edition of the Energy and Natural Resources Law Journal in March The Centre’s website can be accessed at: 2008. http://creel.law.unimelb.edu.au/ • Indigenous Economic Development and Tax Policy The Centre can be contacted by email at: Workshops – 28 August and 21 September 2007. [email protected] In August and September, the project convened two workshops, one hosted by the Melbourne Law School, inviting indigenous and non-indigenous practitioners as well as experts from the private sector and academia to participate in a discussion on Indigenous Economic Development and Tax Policy. Following on from these Workshops, a symposium on Indigenous Communities, Economic Development and Tax Policy Symposium will be held at the University of Melbourne in February 2008.

Visits Associate Professor Maureen Tehan visited the Centre for Energy, Petroleum and Mineral Law and Policy at the University of Dundee in October 2007. The Centre is internationally renowned as a graduate school and research centre in the field of international business transactions and natural resources and energy law and policy. The main focus of the visit was to meet with researchers who are engaged in research relevant to the ARC funded research project of Associate Professor Tehan and other members of the Agreements, Treaties and Negotiated Settlements. Possible collaborations on research projects of common interest were discussed with members of the Centre including legal researchers, resource economists and public policy and governance researchers.

Centres and Institutes 41 Centre for Islamic Law and Society

The Centre for Islamic Law and Society (CILS) (formerly, Research Projects Centre for the Study of Contemporary Islam (CSCI)) is a The CILS is associated with 3 major research projects: joint centre located in both the Law School and the Faculty of Arts (Asia Institute) at the University of Melbourne. • ARC Linkage Grant: ‘Religion, Finance and Ethics: Islamic and Conventional Perspectives on Shared Given global events over the last few years, Islam and Principles, Practices, and Financial Institutions and Islamic studies have received renewed attention. The Instruments’ (2007–2009) (with Monash and Deakin Centre aims to facilitate and support Islam-related research Universities – Saeed, A, Mews, Ariff, Skully, Bakar, and education projects across the University, particularly Ghouse) those related to contemporary Islamic thought. It also aims to improve Australian understandings of Islam, both within • ARC Federation Fellowship: ‘Islam and Modernity: the University and throughout the wider community. Syari’ah, Terrorism and Governance in South-East Asia (2006–2011) (Lindsey,T) Aims • ARC Discovery Project: ‘Islamic Law in Contemporary The specific aims of the CILS include: Malaysia, Singapore and Brunei: The Anglo-Malay Madhhab’ (2005–2007) (Lindsey,T) • to create a global centre of excellence in Islamic studies at the University of Melbourne; Publications • to promote interdisciplinary approaches to contemporary The following books were published by Centre members Islamic thought at the University of Melbourne, with in 2007: particular focus on areas such as law, human rights, pluralism, Islam in the West, interreligious relations and • Lindsey, T (ed), Law Reform in Developing and causes of and responses to militant Islam; Transitional Economies, Routledge, London (2007) • to coordinate the procurement and efficient utilization • Saeed, A, The Qur’an: An Introduction, Routledge, New of resources and infrastructure for the study of York, (2007) contemporary Islamic thought at the University of Melbourne; Briefing Paper Series • to attract researchers/specialists in the study of The CILS publishes the CILS Islamic Issues Briefing Paper contemporary Islamic thought of the highest calibre to series, which is available in hard copy and on the CILS the University of Melbourne; website. • to function as a think-tank for issues related to Islam and Recent papers include: Muslim societies; and • Briefing Paper 1 (2006) – ‘Islam in Southeast Asia: • to offer short courses and training to enhance Tolerance and Radicalism’, by Professor Azyumardi Azra community understandings of Islam, Islamic thought • Briefing Paper 2 (2006) – ‘Iran, Islam and Democracy: and Muslim societies, both on ex gratia and commercial Fluid Identities’, by Professor Haleh Afshar bases. • Briefing Paper 3 (2007) – ‘Listening to the Qur’an: A Search for Understanding’, by Professor Anthony H. Johns

42 Melbourne Law School Research Report 2007 Centre for Islamic Law and Society

Seminars • ‘Islam, Modernity and the Enlightenment: A New Perspective’, Associate Professor Samer Akkach, Islam Research Seminar Series Founding Director, Center for Asian and Middle The CILS Islam Research Seminar Series are lunchtime Eastern Architecture (CAMEA), School of Architecture, seminars that are more informal and are often presented Landscape Architecture and Urban Design, The by postgraduate students. (16 August 2007) • ‘The Dilemma of Equality in Traditional Societies: • ‘Tribal Law in Islam and in Saudi Arabian Law’, Dr Kafa’ah in Marriage in Oman as an Example’, Mr Khalid Hossein Esmaeili, Senior Lecturer, School of Law, Al-Azri, PhD Candidate, Asia Institute, The University of (27 August 2007) Melbourne (28 March 2007) • ‘Responses of Local Women’s NGOS to Sharia • ‘‘Perda Syariat’: Its Implementation and Implication in Implementation in Post-Conflict Aceh’, Ms Dina South Sulawesi, Indonesia’, Mr Andi Amiruddin, PhD Afrianty, PhD Candidate, Asia Institute, The University Candidate, Asia Institute, The University of Melbourne of Melbourne (with Asian Law Centre) (with Asian Law Centre) (18 April 2007) (5 September 2007) • ‘Islamic Commercial Law Reform in Afghanistan: A • ‘From Prohibiting Levirate to Mandating Conditional First-Hand Account’, Mr Andrew White, PhD Candidate Talaq: The Interplay of Islamic Laws and Cultural and Senior Fellow, Faculty of Law, The University of Practices in Marriage and Divorce’, Ms Anisa Buckley, Melbourne (with Asian Law Centre) (2 May 2007) PhD Candidate, Asia Institute, The University of • ‘Cultural Diversity in the South of Thailand: Language, Melbourne (3 October 2007) Policy and Reconciliation’, Thai Muslim Visitors (with • ‘Violence in Southern Thailand: Causes, Agents and Asian Law Centre) (8 May 2007) Trajectory’, Mr John Funston, Executive Director, • ‘Religion and Legal Pluralism in Indonesia: A Case Study National Thai Studies Centre, Faculty of Asian Studies, of Joint Ministerial Decrees on the Construction of Australian National University (with Asian Law Centre) Worship Places’, Dr Nadirsyah Hosen, Lecturer, Faculty (8 October 2007) of Law, University of Wollongong (with Asian Law • ‘Islamic Banking and the Tensions between Homo Centre) (16 May 2007) Economicus and Homo Islamicus’, Mr Imran Lum, PhD • ‘What Happens When a Comparativist Starts Listening Candidate, Asia Institute, The University of Melbourne to Stories?’, Mr Jeremy Kingsley, Research Assistant, (with Asialink) (24 October 2007) Faculty of Law, The University of Melbourne (with Asian • ‘The Chief Justice Saga and the Place of Judicial Law Centre) (11 July 2007) Activism in Pakistan’, Assistant Professor Sadaf Aziz, • ‘Islam and Democracy in Indonesia: Political Responses School of Social Sciences and Humanities, Lahore of Muhammadiyah & Nahdlatul Ulama: 1998–2007’, University (with Asian Law Centre) (28 November 2007) Mr Suaidi Asyari, PhD Candidate, Asia Institute, The Other Events University of Melbourne (with Asian Law Centre) (17 July 2007) • Forum Discussion: ‘The Voice of Australian Muslims’ (with Issues Deliberation Australia and Islamic Council of • ‘Conflict and Conformity in Islamic Education: An Victoria) (1 February 2007) Environmental Perspective’, Professor Saleem Ali, Associate Professor of Environmental Policy and • ‘International Humanitarian Law and the Muslim Planning and Acting Associate Dean for Graduate World’ (with Australian Red Cross) (21 March 2007) Education, Rubenstein School of Environment and • Sixth Annual International Abraham Conference: Natural Resources, University of Vermont, USA ‘Shaping a Nation’s Values: The Abrahamic Tradition’ (25 July 2007) (with Australian Intercultural Society) (26 August 2007) • ‘Islamic Thought on Children’s Motivation In Education: Ibn Sahnun to Al-Ghazzali’, Mr Muhammad Eeqbal Farouque Hassim, PhD Candidate, Asia Institute, The University of Melbourne (8 August 2007)

Centres and Institutes 43 Centre for Islamic Law and Society

Conferences Contact the CILS The CILS hosts an annual conference on current The Centre’s website can be accessed at issues relating to Islam. It also hosts an annual national http://www.cils.unimelb.edu.au postgraduate conference on Islamic Studies, which is open The Centre can be contacted by email at: to students from throughout Australia. [email protected] The 2007 Colloquium, held on 12 November, 2007, was titled ‘Beyond Radicalism and Liberalism? Islamic Law in Southeast Asia’. The Islamic Studies Postgraduate Conference was held on 13–15 November, 2007.

Visitors In 2007, the Centre hosted the following (selected) visitors: Dr Makruf Jamhari, Executive Director, Center for the Study of Islam and Society, National Islam University (PPIM-UIN, Jakarta), Indonesia (11–12 November 2007) Professor Mark Cammack, Southwestern University Law School, USA (11–16 November 2007) Associate Professor Michael Feener, Department of History, Faculty of Arts and Social Sciences, National University of Singapore, Singapore (11–16 November 2007) Dr Robin Bush, Deputy Country Representative, The Asia Foundation, Indonesia (12 November 2007) Mr Noor Huda Ismail, Journalist and Researcher, Indonesia (12–15 November 2007)

Staff Co-Directors: Professor Abdullah Saeed Professor Tim Lindsey Manager: Ms Kathryn Taylor Administrative Assistant: Ms Kelly McDermott

44 Melbourne Law School Research Report 2007 Institute for International Law and the Humanities

The Institute for International Law and the Humanities IILAH focuses on encouraging the work of those (IILAH) is dedicated to integrating the study of international developing new approaches to the field of international law with contemporary approaches to the humanities. law and on facilitating engagement between scholars and It facilitates and promotes innovative scholarship and the community of professionals and activists working on critical thinking on emerging questions of international law, issues of international law and governance in Australia and governance and justice, and strengthens the role of the the Asia-Pacific region. IILAH seeks to develop networks Melbourne Law School as a leading centre of research in with scholars in international law and the humanities from this area. The director of IILAH is Professor Anne Orford the global South, to explore the ways in which colonial and it’s administrator is Ms Vesna Stefanovski. Associate law has arrived and been received. It will also focus on Professor Dianne Otto was acting director of IILAH for developing links with scholars in the United Kingdom and Semester 2, 2007. in former British colonies such as Canada, India, New Zealand and Sri Lanka, in order to explore the shared Aims and Objectives legacies of British colonialism with respect to international The modern discipline of international law has been a law and governance. productive site for the exploration of concepts which have also absorbed the humanities —sovereignty, Public Lectures jurisdiction, force, universality, territory, asylum, peace, 22 February 2007: Allen Hope Southey Memorial non-discrimination, equality, development, imperialism, Lecture: Why Refugee Law Still Matters, Professor James human rights, security and states of emergency. Many of Hathaway (Law, University of Michigan, now Dean of the significant modes of thought which have framed the Melbourne Law School) way in which international lawyers understand the world International refugee law has come under increasing have developed in conversation with the humanities. IILAH attack in recent years. In particular, it has been suggested continues this engagement, through fostering dialogue that international efforts are best addressed to meeting with scholars working in disciplines such as anthropology, the needs of at-risk persons still inside their own country, art, cultural studies, geography, history, linguistics, and that whatever external protection is granted should literature, philosophy, politics and theology. be strictly temporary. In this lecture, Professor Hathaway IILAH’s activities are structured around the following eight sought to open a debate on the wisdom of departure from Research Programmes, each led by Programme Directors traditional notions of asylum, and to suggest constructive based at the Melbourne Law School: ways that the human rights of involuntary migrants can • History and Theory of International Law best be reconciled to the legitimate concerns of receiving (Professor Anne Orford) states. • International Economic Law 6 June 2007: Sir Kenneth Bailey Memorial Lecture: Third (Mr Jürgen Kurtz) World Approaches to International Law: Past, Present and Future, Professor B S Chimni (School of International • International Environmental Law Studies, Jawaharlal Nehru University, New Delhi) (Associate Professor Jacqueline Peel) Professor Chimni’s lecture took a sweeping look at the • International Human Rights Law past, present and future of international law using a critical (Associate Professor Dianne Otto) third world approach. Professor Chimni explored the • International Refugee Law alienation of international law from the people of the Third (Dr Michelle Foster) World as the thread that binds the disparate fragments of • Law and Development past, present and future of international law. In speaking (Dr Jennifer Beard and of the future of international law, he discussed the slow Associate Professor Sundhya Pahuja) transformation of international law into internal law and the emergence of a Global State. Finally, the lecture reflected • Security and International Law on the role of international lawyers in creating a just world (Professor Anne Orford) order. • Theories of Sovereignty and Jurisdiction (Associate Professor Peter Rush)

Centres and Institutes 45 Institute for International Law and the Humanities

18 July 2007: Melbourne Law School Distinguished Visitor 19–20 July 2007: Current issues in Refugee Status Program Public Lecture, Human Rights Conditionality in Determination International Trade: Revisiting the Debate, Professor Robert The workshop, convened by Dr Michelle Foster, was Howse (Law, University of Michigan) designed for refugee decision makers and explored This lecture revisited the controversial issue of human cutting-edge issues in refugee status determination. The rights conditionality and international trade. It did so in participants were refugee tribunal members and judges light of recent empirical evidence of when conditionality from New Zealand (the RSAA) and Australia (both the RRT may be effective and when it will not, allowing for a closer and Federal Court). Issues discussed included economic, analysis of the promise and limits of recent developments social and cultural rights in the context of refugee with respect to voluntary codes of conduct/corporate determination, particularly in relation to the question social responsibility, as well as the evolution of GSP of when the deprivation of socio-economic rights may conditionality (preferences) and conditionality in Regional amount to persecution. Trade Agreements (RTAs). 19–21 September 2007: International Law and Wars of Religion, held at the Faculty of Law, University of Lund, Workshops Sweden 23 February 2007: Protection Elsewhere: International Law Professor Anne Orford co-convened this workshop with and the Off-shore Processing and Protection of Refugees Professor Martti Koskenniemi (University of Helsinki) and This workshop was convened by Dr Michelle Foster and Professor Gregor Noll (University of Lund). This workshop included prominent scholars, practitioners and advocates explored the history of cosmopolitan international law as in Australian refugee law, including Justice Tony North of a modernizing and secularizing project. International law is the Federal Court of Australia and President, International often represented as offering an answer to the resurgent Association of Refugee Law Judges, as well as discourse of religious warfare globally and to the challenge international visitors including Professor James Hathaway of civil warfare internally. In this vision, the turn to (University of Michigan, now Dean of Melbourne Law international law promises to perfect the elegant European School) and Mr Rodger Haines QC (Deputy Chairperson, solution to earlier periods of seemingly intractable religious New Zealand RSAA). The workshop provided an warfare – the modern state. International legal rules and opportunity for critical analysis of the key issues in the institutions would then represent a neutral and secular offshore processing and protection of refugees. framework within which religious beliefs would be both 17 July 2007: Tracing the Contours of the Right to protected and limited in their ambition. This workshop Regulate at International Law explored whether this familiar solution is really available to us. It asked whether the modern state and international This workshop, convened by Mr Jürgen Kurtz, provided law are in fact manifestations of neutral secularism, and an examination of the interplay between the imperatives to what extent practices such as the civilising mission, and limits that shape the contemporary regulatory state. humanitarian intervention, promotion of universal values It took as its normative starting point the right of states to and the motivating force of images of suffering suggest regulate at international law. This then allowed for close the persistence of a Christian vision within international analysis and contrast on the scope, quality and institutional law. Is international law, in other words, an instrument structure of interventions on that right in key areas of public to deal with the wars of religion, or perhaps a belligerent interest. Key areas included national security, economic party itself? Participants included Professor Tony Anghie liberalism, development, the environment and human (Law, Utah), Dr Ida Auken (Theology, Copenhagen), rights. The objective was to draw out the implications Professor Nathaniel Berman (Law, Brooklyn), Dr Jenny of these often conflicting interventions for regulatory Beard (IILAH, Melbourne), Associate Professor Ian autonomy and citizen welfare in the contemporary state. Duncanson (Law, Griffith), Associate Professor Judith Speakers included Professor Robyn Eckersley (Politics, Grbich (Law, Griffith), Professor Werner Jeanrond University of Melbourne), Professor Michael Hahn (Law, (Theology, Lund), Professor Friedrich Kratochwil (Political University of Waikato), Professor David Kinley (Law, and Social Sciences, European University Institute), University of Sydney), Mr Jürgen Kurtz (Senior Lecturer, Professor Philip Lorenz (English, Cornell), Dr Alejandro Law, University of Melbourne), Professor Anne Orford Lorite (Law, American University in Cairo), Dr Naz (Law, University of Melbourne) and Professor Jeff Modirzadeh (Humanitarian Policy and Conflict Research, Waincymer (Law, Monash University). Professor Robert Harvard) and Dr Pamela Slotte (Centre of Excellence in Howse of the University of Michigan acted as the closing Global Governance Research, Helsinki). IILAH research speaker.

46 Melbourne Law School Research Report 2007 Institute for International Law and the Humanities students Ms Yoriko Otomo and Mr Luis Eslava also Seminars presented at the workshop. The workshop was funded by 21 February 2007: The WTO Panel’s Rulings in GMO/ the Australian Research Council, the Academy of Finland, Biotech: A Conversation IILAH and the Faculty of Law, University of Lund. At over 1000 pages, the WTO Panel decision in the recent 16 November 2007: Seen and Heard: Priority for Children GMO/Biotech case is arguably one of the longest and in the Legal Process, 10 years on: Looking Back and most complex decisions issued by the international trade Moving Forward dispute settlement system to date. The decision deals This workshop was co-hosted by Mr John Tobin (IILAH with many important issues that touch not only on the and the Melbourne University Human Rights Forum), interpretation of trade agreements (particularly the SPS Ms Tiffany Overall (Youth Law (Victoria)) and Mr James Agreement), but also matters of public international law. In McDougall (the National Children’s and Youth Law Centre). this seminar, convened by Associate Professor Jacqueline As it is now 10 years since the release of the Australian Peel and chaired by Professor Anne Orford, five panellists Law Reform Commission’s report, Seen and Heard: Priority from Melbourne Law School discussed their different for Children in the Legal Process, the workshop provided perspectives on key aspects of the Panel’s rulings. a timely opportunity to (a) reflect on the extent to which Speakers were Associate Professor Jacqueline Peel (on the recommendations proposed in the report have been the background to the GMO/Biotech case), Mr David adopted and (b) consider the research and advocacy Morgan (on the scope of the SPS Agreement), Dr Tania necessary to affirm, develop and expand upon the vision Voon and Dr Andrew (on the use (and misuse) of public articulated in the report with respect to the treatment of international law in the GMO/Biotech case) and Mr Jürgen children within Australia. The workshop brought together Kurtz (on implications of the GMO/Biotech case for other 40 government and community practitioners, researchers regulatory regimes). and academics, stimulating what is hoped will be an 24 April 2007: Unveiling the Political: A Postcolonial Theory ongoing and collaborative discussion with respect to these Seminar issues. This seminar was convened by Associate Professor Conferences Sundhya Pahuja. Speakers were Dr Stewart Motha (Kent Law School) on ‘Veiled Women and the Affect of Religion 29–30 November 2007: Markings: Sites of Analysis, in Democracy’ and Dr Roshan de Silva-Wijeyeratne (Griffith Discipline, Interrogation Law School) on ‘On the (Im)possible Relation between IILAH co-hosted this international conference with the Universal and the Particular: Representation and the the Centre for Media and Communications Law at Limits of Relativism’. Associate Professor Peter Rush (Law) the Melbourne Law School and the Law and Society opened the seminar, and Dr Andy Schaap (Politics) led a Association of Australia and New Zealand. Plenary keynote general discussion following the papers. speakers and panellists included Ms Sadaf Aziz (Lahore 27 April 2007: Zero Tolerance Policy Roundtable University of Management Sciences), Professor Eve Discussion, held at Columbia Law School, New York Darian-Smith (University of California, Santa Barbara), Associate Professor William MacNeil (), This roundtable on the problem of sexual exploitation and Associate Professor Shaun McVeigh (Melbourne Law abuse in UN peace support operations was co-convened School) and Dr Rebecca Scott Bray (University of Sydney). by IILAH with the Law and Policy Project, Mailman School of Public Health, Columbia University. It was jointly organised by Associate Professor Dianne Otto (IILAH) and Professor Alice Miller (Columbia). The roundtable aimed to think through some of the complexities of the UN’s response to the problem of sexual exploitation and abuse, which has been to implement a policy of ‘zero tolerance’ with respect to all sexual activities between peacekeeping personnel and the host population. Participants included a mix of feminist scholars, UN policy-makers and NGO practitioners, all of whom had some involvement with these issues, but from quite different perspectives. Copies of the proceedings will be available, in due course, at http://iilah.unimelb.edu.au.

Centres and Institutes 47 Institute for International Law and the Humanities

7 June 2007: State Power, Patent Power and Patent 16th October 2007: Australia’s Return of Asylum Seekers Offices – Lessons for Developing Countries from History to Indonesia and Papua New Guinea: Lawful Protection This seminar was presented by Professor Peter Drahos, Elsewhere Policies? Director of the Centre for Governance of Knowledge and This seminar was presented by Dr Savitri Taylor (Law, Development and the Head of Program of the Regulatory LaTrobe), a visiting scholar at IILAH during 2007, and Institutions Network at the Australian National University. convened by Dr Michelle Foster. The seminar was The seminar, convened by Professor Anne Orford, Director attended by a diverse range of participants which included of IILAH, explored the histories of patent law and patent scholars, students, solicitors, and representatives of a office administration. Professor Drahos spoke about the number of non-governmental organisations with an interest emergence of modern patent administration in Europe in refugee protection. Dr Taylor examined the international and the US. He asked whether this regulatory history legal framework governing the attempt by states to contains lessons as to how developing countries today circumvent or transfer their protection responsibilities might approach patent administration. Professor BS Chimni under the 1951 Refugee Convention. She then scrutinised offered a response, drawing on the history of modern Australia’s recent practices in returning asylum seekers patent law and administration in post-colonial India. to Indonesia and PNG in light of these legal obligations, 14 August 2007: Afghanistan 2007: Women Liberated or a concluding that there are serious concerns with Australia’s Continued Struggle for Fundamental Human Rights? implementation of “protection elsewhere” policies. The seminar, convened by Associate Professor Postgraduate Roundtables Dianne Otto, commenced with an introduction by Ms 26 February 2007: IILAH and the University of Melbourne Olivera Simic, which drew parallels between women’s Human Rights Forum co-hosted this postgraduate experiences of the war on terror in Afghanistan and roundtable with Sir Nigel Rodley, Vice-Chair of the UN the war in her home country, the former Yugoslavia. Human Rights Committee and a Professor of Law and The speaker was Sohaila (a pseudonym), from the Chair of the Human Rights Centre at Essex University. Revolutionary Association of the Women of Afghanistan Postgraduate students from across the University of (RAWA), who drew a bleak picture of the present lives of Melbourne gave brief (10 minute) informal presentations on women in Afghanistan and of their future prospects for human rights related research, which was then discussed equality. She described extreme poverty, high mortality in a roundtable setting. Sir Nigel also give some insight rates related to malnutrition, childbirth or suicide, and a into his work with the UN human rights treaty bodies and culture of misogyny, and noted that security for girls is special procedures. extremely poor, with kidnap, rape and murder occurring frequently. 16 March 2007: Professor Anne Orford convened a postgraduate roundtable with Professor Antony Anghie 23 August 2007: Corporate Social Responsibility and (Utah) on New Thinking in International Law. Four International Soft Law: Opportunities and Limits for research students working in the areas of critical theory Transnational Corporations’ Accountability for Human and international law presented work-in-progress, and Rights discussed their projects with Professor Anghie and At this seminar, Professor Elena Pariotti, IILAH Visiting audience members. Papers were presented by Ms Yoriko Scholar from the University of Padua, Italy, argued Otomo (IILAH), Mr Luis Eslava (IILAH), Mr Daniel Muriu for drawing a clear distinction between the ‘hard law’ (IILAH) and Ms Nesam McMillan (Criminology). (binding) obligations of transnational corporations (TNCs) 7 June 2007: Professor Anne Orford convened a and their ethical ‘soft law’ obligations. She defined TNC’s postgraduate roundtable on the theme of Power, Property hard law obligations as encompassing the obligation to and Possession. The workshop provided a forum for ‘respect’, which she emphasised is a negative obligation six postgraduate research students to present work in that attaches to all human rights, not just civil and political progress and receive feedback from visiting professors BS rights. She included the minimum essential core of every Chimni (Jawaharlal Nehru University, New Delhi) and Peter human right necessary for survival with dignity in her Drahos (Australian National University) and from audience notion of the obligation to respect. members. Speakers were Mr Ed Mussawir (IILAH), Ms Cressida Limon (IILAH), Ms Yoriko Otomo (IILAH), Ms Luis Eslava (IILAH), Mr Daniel Muriu (IILAH) and Ms Nesam McMillan (Criminology).

48 Melbourne Law School Research Report 2007 Institute for International Law and the Humanities

Book Launches and Discussions • Pahuja, S, ‘Rights as Regulation: The Integration of 16 February 2007: Beard, J, The Political Economy of Development and Human Rights’ in B Morgan (ed), The Desire: International Law, Development and the Nation Intersection of Rights and Regulation, Ashgate, London State. The book was launched by Professor Anne Orford, (2007), 167–191 Director of IILAH. • Buchanan, R and Pahuja, S, ‘Law, Nation and 19 July 2007: Foster, M, International Refugee Law and (Imagined) International Community’ in J Hawley and R Socio-Economic Rights: Refuge from Deprivation. The Krishnaswamy (eds), The Postcolonial and the Global, book was launched by the Hon Tony North, a Justice of the University of Minnesota Press, United State (2007), Federal Court of Australia and President of the International 261–274 Association of Refugee Law Judges. • Peel, J, ‘The Role of Climate Change Litigation in 29 August 2007: Conversation between independent Australia’s Response to Global Warming’ (2007) 24 journalist and author Paul Cleary, and faculty member Environmental and Planning Law Journal 90–105 Dr Jenny Beard about Paul’s new book, Shakedown: Australia’s Grab for East Timor’s Oil. Associate Professor Contact iILaH Sundhya Pahuja chaired the event. The Institute’s website can be accessed at: http://iilah.unimelb.edu.au/ 7 December 2007: Arts, K and Pinto Leite, P (eds), International Law and the Question of Western Sahara. The Institute can be contacted by email at: The book was launched by Professor Stephen Zunes [email protected] (University of San Francisco).

Publications Selected publications by IILAH members in 2007 include: • Beard, J, The Political Economy of Desire: International Law, Development and the Nation State, Glass House Press; Routledge-Cavendish, United Kingdom (2007) • Foster, M, International Refugee Law and Socio- Economic Rights: Refuge from Deprivation, Cambridge University Press, United States (2007) • Orford, A, ‘Biopolitics and the Tragic Subject of Human Rights’ in E Dauphinee and C Masters (eds), The Logics of Biopower and the War on Terror: Living, Dying, Surviving, Palgrave-Macmillan, United States (2007), 205–243 • Orford, A, ‘Ritual, Mediation and the International Laws of the South’ (2007) 16 Griffith Law Review 353–374 • Otto, D, ‘Making Sense of Zero Tolerance Policies in Peacekeeping Sexual Economies’, in V Munro and C Stychin (eds), Sexuality and the Law: Feminist Engagements, Routledge-Cavendish, United Kingdom (2007), 259–282 • Otto, D, ‘Pursuing Women’s Rights by Integrating the Standards of CEDAW into the Work of the Other Treaty Committees’, in S Dairiam (ed), Women’s Human Rights: Challenges and the Way Forward, IWRAW-AP, Malaysia (2007)

Centres and Institutes 49 Intellectual Property Research Institute of Australia

Established in 2002, the Intellectual Property Research Events Institute of Australia (IPRIA) is one of the world’s few, and Australia’s only, multidisciplinary research organisation Seminars specialising in research on the law, economics and • 1 November 2007, Knowledge Brokering: A management of intellectual property. The Institute Competitive Advantage for Biotech Start-Ups? Dr was established with the broad aim of increasing the Kwanghui Lim, Research Fellow, IPRIA understanding, creation, use and exploitation of intellectual • 2 July 2007, Making Copyright Safe for Parody and property by Australian organisations and individuals. It is Satire, Professor Graeme Austin, J Byron McCormick based at the University of Melbourne, comprising directors Professor of Law, the University of Arizona College and staff from the Melbourne Law School, the Faculty of of Law (in association with the Centre for Media and Economics and Commerce, and the Melbourne Business Communications Law) School. • 26 April 2007, Universities Innovation Showcase: IPRIA aims to produce world-class information and analysis Delivering Business Solutions. This event was a on the operation and impact of intellectual property (IP) collaborative effort by all Victorian Universities systems. IPRIA’s activities aim to: • 22 March 2007, Business Models and Patent Strategies • support and generate development of high-level public for ‘Multi Invention’ Contexts, Dr Deepak Somaya, policy in relation to intellectual property issues; Assistant Professor, Robert H Smith School of Business, • improve the protection, management and University of Maryland (in association with the exploitation of intellectual property by all Australian Melbourne Business School) stakeholders, including research institutions, public and • 7 February (Melbourne), 15 February (Brisbane), private sector interests; and 20 February (Sydney), An Accounting Approach to • help create an informed environment for, and Estimating the Return on Intangible Investments, contribute to, on-going public debate in Australia Associate Professor Anne Wyatt, University of about intellectual property issues and related matters, Technology, Sydney and Associate Professor Beth including innovation policy and economic growth. Webster, Associate Director, IPRIA

A Selection of Research Projects undertaken Short Courses by IPRIA Staff • 26 July 2007, IP Commercialisation Ventures and • IP in the China-Australia Free Trade Agreement Taxation, Mr Cameron Rider, Partner, Allens Arthur Robinson • Quality of International Patent Examination • 9 May 2007, Mastering the Patent System, Professor • Disharmony between the Quad Lateral Patent Offices Andrew Christie, Director, Intellectual Property Research • Uncertainty and the Success of Innovation Institute of Australia, Mr Des Ryan, Consultant, Davies Collison Cave and Mr Geoff Mansfield, Griffith Hack • Comparative Examination of Opposition Processes in Patent Law • IP Enforcement • Quality in the Patent Application Process • Fundamental Concepts in Copyright • Settlement of Patent Litigation • Employee Rights to IP • History of Australian Patent Policy • Protection Against Look-Alike Packaging • The Role of IP Protection and its Use in Encouraging Innovation, Competition and Commercialisation • The Effect of Interorganisational Personnel Flow on Firm Performance: An Examination of IP Lawyer Movement • Knowledge Bridging by Biotechnology Start-Ups

50 Melbourne Law School Research Report 2007 Intellectual Property Research Institute of Australia

Significant Publications Contact IPRIA Reports The Institute’s website can be accessed at: http://www.ipria.org • Hall, E, Dent, C and Christie, A, Patent Attorney Privilege in Australia: Rationale, Current Concerns and Avenues The Institute can be contacted by email at: for Reform (2007) [email protected] Working Papers • Chesbrough, H, Lim, K and Ruan, Yi, Open Innovation and Patterns of R&D Competition, IPRIA Working Paper No. 12/07 • Hsu, D and Lim, K, The Antecedents and Innovation Consequences of Organizational Knowledge Brokering Capability, IPRIA Working Paper No. 11/07 • Zhuang, W, Wong, P and Lim, K, Knowledge Search and its Effects on the International Diffusion of Knowledge: Evidence from Information Storage Technology Patents, IPRIA Working Paper No. 10/07 • Christie, A, Cultural Institutions, Digitisation and Copyright Reform, IPRIA Working Paper No. 09/07 • Jensen, P, Palangkaraya, A and Webster, E, Delays in International Patent Application Outcomes, IPRIA Working Paper No. 08/07 • Leahy, A, MacLaren, D, Morgan, D, Weatherall, K, Webster, E and Yong, J, In the Shadow of the China- Australia FTA Negotiations: What Australian Business Thinks About IP, IPRIA Working Paper No. 07/07 • Dent, C, Patent Policy in Early Modern England: Jobs, Trade and Regulation, IPRIA Working Paper No. 06/07 • Dent, C, To See Patents as Devices of Uncertain (But Contingent) Quality: A Foucaultian Perspective, IPRIA Working Paper No. 05/07 • Christie, A and Rotstein, F, Duration of Patent Protection: Does One Size Fit All?, IPRIA Working Paper No. 04/07 • Gans, J, Hsu, D and Stern, S, The Impact of Uncertain Intellectual Property Rights on the Market for Ideas: Evidence from Patent Grant Delays – UPDATE, IPRIA Working Paper No. 03/07 • Dent, C and Weatherall, K, Lawyers’ Decisions in Australian Patent Dispute Settlements: An Empirical Perspective, IPRIA Working Paper No. 02/07 • Dent, C, Patent Opposition and the Constitution: Before or After?, IPRIA Working Paper No. 01/07

Centres and Institutes 51 The Tax Group

The Tax Group at Melbourne Law School is a focal point for Research Projects excellence in tax research and education. Members of the Key research projects of the Tax Group in 2007 included Tax Group carry out a range of tax research projects with projects on employee share ownership; tax reform a technical and a policy focus and contribute actively to processes in a globalized world; and international taxation public debate on tax reform. The Tax Group brings together rules. academic faculty and experienced tax professionals including members of leading law and accounting Employee Share Ownership firms and leading members of the Tax Bar, to provide a Associate Professor Ann O’Connell continued work with comprehensive and detailed Tax Masters degree program. Professor Richard Mitchell of the Centre for Labour Law Activities of the Tax Group include: and Professor Ian Ramsay of the Centre for Corporate Law and Securities Regulation on a 3 year ARC-funded • academic research into tax law and policy; research project, ‘Employee share ownership: current • offering a diverse range of more than 20 advanced tax practice and regulatory reform’. Associate Professor subjects in the Melbourne Law Masters and teaching O’Connell prepared a research report titled ‘Employee in the LLB, JD and B.Comm; and providing additional Share Ownership Plans in Australia: The Taxation Law training programs to government officials in Australia Framework’ and at the annual Australasian Tax Teachers and overseas; Association Conference held at the TC Beirne School of • organising workshops, seminars and lectures on tax Law, University of Queensland in January 2007, presented policy and law; and a paper on ‘Employee Share Ownership Plans – Current Practice and Regulatory Reform’. Research Fellow Kerry • developing and maintaining relationships with leading Brewster began empirical research into small business and tax academics and centres of tax research and teaching, employee ownership. including the Oxford University Centre for Business Taxation; the Institute for Tax Law and Policy Research Tax Reform and Globalization at Monash University; and leading US institutions Associate Professor Miranda Stewart and Senior Lecturer including the University of Michigan Law School and the Sunita Jogarajan continued their research and publishing University of Florida Levin College of Law. on the impact of globalization and international institutions on tax reform. Sunita Jogarajan carried out research into the influence of the IMF on tax reform, funded by a Melbourne University Early Career Researcher Grant. Miranda Stewart published a chapter on global tax policy transfer to developing countries, focusing on the example of Ghana. In her role as an International Research Fellow of the Oxford University Centre for Business Taxation at the Said Business School, Associate Professor Stewart presented on the politics of tax reform at an academic symposium held at Oxford University in June 2007.

52 Melbourne Law School Research Report 2007 The Tax Group

International Taxation Publications in 2007 Senior Lecturer Dr Michael Kobetsky carried out • Jogarajan, S and Stewart, M, ‘Review Essay – Harmful research into unitary taxation of international enterprises, Tax Competition: Defeat or Victory?’ (2007) 22 Australian presenting a paper at the annual Australasian Tax Teachers Tax Forum 3–17 Association Conference held at the TC Beirne School of • Jogarajan, S, ‘Purpose in Consolidation – No More Law, University of Queensland. A revised version of the Purpose?’ (2007) 36 Australian Tax Review 253–268 paper was accepted for publication in the IBFD Bulletin of International Taxation. Dr Kobetsky also travelled to • Farrow, I and Jogarajan, S, ‘ASEAN Tax Regimes: Tokyo, Japan to present a paper at the Asian Development Impediment or Pathway to Greater Integration’ in D Hew Bank Tax Conference on ‘Transfer Pricing: Principles and (ed), Brick by Brick: The Building of an ASEAN Economic Practice’. The conference was attended by tax officials Community, Asia Pacific Press, Australia (2007), 132– from Asian developing countries. 143 Senior Lecturer Sunita Jogarajan attended the 4th Annual • Kobetsky, M, O’Connell, A and Stewart, M, ‘Australia’ Asian Law Conference held at the University of Indonesia, in P Bongaarts, D Bouzoraa, D Maisto, D and G Pelvan Jakarta, where she presented a paper on the Indian tax (eds), Investment Funds: International Guide to the system and foreign direct investment. In an exciting Taxation and Regulation of Mutual Funds and their development, the recommendations of a 2006 Report on Investors, International Bureau for Fiscal Documentation ‘ASEAN Tax Regimes and the Integration of the Priority (2007) Sectors: Issues and Options’, co-authored by Senior • O’Connell, A, Employee Share Ownership Plans in Lecturer Sunita Jogarajan with Ian Farrow of KPMG, Australia: The Taxation Law Framework, (Research were reflected in the Joint Ministerial Statement of the Report, Employee Share Ownership Project), Melbourne 11th ASEAN Finance Ministers’ Meeting in Chiang Mai, Law School, University of Melbourne (2007) Thailand, 5 April 2007. These recommendations will help shape income tax and trade policy in ASEAN member • O’Connell, A, Landau, I, Mitchell, R and Ramsay, I, countries over the next several years. The report was also An Overview of Existing Data on Employee Share , (Research Report, Employee developed into a chapter included in the book Brick by Ownership in Australia Share Ownership Project), Melbourne Law School, Brick: The Building of an ASEAN Economic Community (full publication details below). University of Melbourne (2007). This has also been published in SSRN and accepted for publication in the Associate Professor Ann O’Connell presented a paper UCLA Pacific Basin Law Review. on ‘Combating Large Scale Tax Evasion – the Australian Experience’, with a particular emphasis on international tax • O’Connell, A, Landau, I, Mitchell, R and Ramsay, I, evasion, at the annual Tax Research Network Conference Employee Share Ownership: A Review of the Literature, held at Sheffield University in the United Kingdom. (Research Report, Employee Share Ownership Project), Melbourne Law School, University of Melbourne (2007) Income Tax Law and Policy • Stewart, M, ‘Tax Policy Transfer to Developing Countries: Associate Professor Ann O’Connell participated in Politics, Institutions and Experts’ in F Schui and H a conference hosted by the Centre for Public Policy Nehring (eds), Global Debates about Taxation, Palgrave (University of Melbourne) on the theme ‘From Welfare Macmillan, United Kingdom (2007), 182–200 to Social Investment: Reimagining Social Policy for the • Flynn, M, Stewart, M and Krever, R, Death and Taxes: Life Course’. Associate Professor O’Connell’s conference Tax Effective Estate Planning (2nd ed), Thomson, paper was on the topic, ‘The Proposed Superannuation Tax Australia (2007) Changes: Good Policy or Electoral Pragmatism’. • Stewart, M and Walker, K, ‘17th Congress of the Senior Lecturer Sunita Jogarajan attended the Australasian International Academy of Comparative Law: Tax Law Tax Teachers’ Association Conference held at the TC Session: Australia – National Report’ (2007) 15 Michigan Beirne School of Law, University of Queensland, where State Journal of International Law 193–245 she presented a paper on the corporate consolidated groups tax regime, entitled ‘Purpose in Consolidation – No More Purpose?’, subsequently published in the Australian Tax Review.

Centres and Institutes 53 The Tax Group

Visiting Teaching and Seminar Presentations Melbourne Law School Annual Tax Lecture Members of the Tax Group were invited to teach or The Annual Tax Lecture series was launched by the present seminars at a range of institutions during 2007. Tax Group in 2005 with the purpose of placing the • Associate Professor Miranda Stewart was a Visiting development of tax law in its historical context and to Professor at the University of Florida Levin College inform public debate on current tax issues. In April 2007, of Law during January and February 2007, where she the Tax Group hosted the third Annual Tax Lecture by taught the subject ‘Taxes and Government Spending’ Professor John Tiley of Cambridge University, on the topic and ‘Taxation of International Business Transactions’ in ‘Managing Tax Avoidance: Recent UK Experience’. the US Tax Masters program. Previous Tax Lectures have been presented by Justice • Two members of the Tax Group, Senior Lecturers Dr Young of the Federal Court of Australia and Mr Michael Kobetsky and Ms Sunita Jogarajan, visited the QC of the Victorian Bar. University of , Faculty of Business to teach ‘Advanced Taxation’ to honours students. Seminars and Workshops The Tax Group hosted three Melbourne branch meetings • Associate Professor Ann O’Connell conducted a seminar of the International Fiscal Association in 2007. for the School of Enterprise on Taxation Issues in the Commercialisation of Intellectual Property in July 2007. • Professor Malcolm Gammie QC, of the UK Bar and Leiden University, The Netherlands, spoke on ‘A UK • Sunita Jogarajan taught a seminar on ‘GST and Property’ perspective on international tax before the ECJ – at the State Revenue Office of Victoria in July 2007. Process and Outcomes’ at a branch meeting hosted Knowledge Transfer and Contributions to jointly with the Tax Bar Association. Policy Debates • Professor Lee Burns of the University of Sydney gave a presentation on ‘Harmonisation of the Anti-deferral Members of the Tax Group participate in peak professional Regimes and the Board of Taxation Discussion Paper’. bodies, as Fellows of the Taxation Institute of Australia and members of the International Fiscal Association, in • Dr H David Rosenbloom, Distinguished Professor, New which they play a role in the development of tax law and York University, spoke on ‘Transfer pricing/cost sharing policy. Tax Group members also work as special counsel to and US practice’ in a meeting hosted jointly with the Tax leading law and accounting firms, ensuring close links with Bar Association. the tax profession and an awareness of the problems of The Tax Group has also initiated a discussion group for tax taxation in practice. academics in Victoria, to encourage cross-fertilization of • Associate Professor Ann O’Connell was a member of research and teaching. the Advisory Panel to the Board of Taxation in Treasury, the peak federal government body concerned with taxation reform, and sat on the Education, Examinations and Quality Assurance Board of the Taxation Institute of Australia. • Associate Professor Miranda Stewart worked as a Consultant to the National Inquiry by the Human Rights and Equal Opportunity Commission into Discrimination Against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits. The Commission reported in May 2007 and adopted the recommendations of Miranda Stewart in respect of discrimination in tax and superannuation laws.

54 Melbourne Law School Research Report 2007 The Tax Group

Management and Staff In 2007, Ms Sunita Jogarajan was promoted from Lecturer to Senior Lecturer. The Co-Directors of the Tax Group are Associate Professor Ann O’Connell and Associate Professor Miranda Stewart. Ms Kerry Brewster is Tax Group Coordinator and Research Fellow.

Contact the Tax Group The Tax Group’s website can be accessed at: http://www.tax.law.unimelb.edu.au/ The Tax Group can be contacted by email at: [email protected]

Centres and Institutes 55 56 Melbourne Law School Research Report 2007 Academic Research Profiles

57 Jennifer Beard

Dr Jennifer Beard was appointed as a senior lecturer at Melbourne Law School in 2006 having already taught in the JD and LLM programmes as a Senior Fellow in 2005. Jennifer is also currently a Director of the Research Programme on Law and Development together with Associate Professor Sundhya Pahuja at the Institute for International Law and the Humanities. Jennifer has been a visiting fellow at the University of British Columbia Law School in Canada where she taught a PhD Seminar on Legal Theory and Interdisciplinary Approaches to Law; a teacher of International Law, Trade and Development in the LLM Programme in the Department of International Law and Human Rights at the United Nations University for Peace in Costa Rica; a visiting fellow at the University of Lund Law School in Sweden; a consultant to the United Nations High Commissioner for Human Rights; and has been admitted to practise at the Victorian Bar. Jennifer is a graduate of the ANU where she completed an Arts/Law degree with Honours in 1995 before completing her Masters of Public International Law at the London School of Economics. Jennifer then worked as an international human rights lawyer for the Commonwealth Human Rights Initiative in New Delhi, India. During her work in India, Jenny became increasingly concerned about the conventional wisdom of working as a western lawyer in developing countries. This concern led her to undertake doctoral research at the University of Melbourne, which resulted in the publication of her first book: The Political Economy of Desire: International Law, Development and the Nation State (Cavendish-Routledge 2007). This book is an interdisciplinary analysis of the genealogy of Western socio-economic development and the roles that cultural identity, Christian theology, international law and the nation state have played in that history. Since writing that book, Jennifer has continued to focus her research on the relationship of law to society, belief systems, historical narrative and ethics. Jennifer has two further books due to be published in 2008. The first, Public International Law in Principle, is an academic text to be co-edited with Dr Andrew Mitchell and published by Thomson. The second is a critical analysis of the relationship between law and development and is to be co-authored with Sundhya Pahuja as part of the Routledge-Cavendish “Critical Approaches to Law” series.

58 Melbourne Law School Research Report 2007 Jennifer Beard

Jennifer has published a number of articles on the theoretical nature and historical sources of law’s relationship to the concept of development in highly regarded Australian and international journals, all of which are refereed by an international body of scholars. Jennifer’s more recent research includes a continuing collaboration with Professor Gregor Noll, Professor of International Law at the University of Lund Law School in Sweden on an analysis of the refugee status determination processes of the Office of the UN High Commissioner for Refugees. Jennifer is also collaborating with Dr Hashim Tewfik, currently Ethiopia’s State Minister for Justice, on theories of rule of law development; as well as completing a critical history of the cab rank rule and the limits the rule places on legal ethics. Her research draws on post-colonial and post-structuralist theories as well the disciplines of history, geography, theology and development studies. Jennifer supervises a number of doctoral scholars in the fields of international law, law and development, international economic law, international human rights law, international refugee law and legal theory.

Academic Research Profiles 59 Beth Gaze

Beth Gaze joined the Law School in 2005 from Monash Law School. She holds degrees from the Universities of California (Berkeley) (LLM), Monash (LLB (Hons)) and Melbourne (BSc). Her current major research interests are in anti-discrimination law and in socio-legal issues arising from empirical studies of law in operation. She has published two books, Law, Liberty and Australian Democracy (with M. Jones) and another on computer software copyright, and many articles on issues in discrimination law, work and family issues, medical law, and privacy law. As a result of her work in discrimination law, Beth has recently been appointed a member of the Advisory Committee to the Victorian government’s Review of the Equal Opportunity Act 1995 which is being undertaken for the Department of Justice. It is hoped that this process may see reforms to the Act later in 2008. Beth’s longstanding interest in the operation of Australian anti-discrimination law, both generally, and in relation to work and family issues has a personal dimension, since she has worked fractionally since the mid-1990s. From 2000–2005 she conducted a research project with Professor Rosemary Hunter that evaluated the impact of the transition from tribunal to court enforcement of discrimination claims in the federal anti-discrimination jurisdiction through collection of detailed empirical data from parties to complaints as well as their advisors. The detailed report of this project is currently awaiting publication by the industry partner on this project, the NSW Law and Justice Foundation. Some emerging findings have been published during 2005 in the Australian Journal of Human Rights establishing that from 2000–2004 there was not one successful case of racial discrimination brought by an indigenous person under the Racial Discrimination Act 1975 (Cth), and that the one successful claim was against an Aboriginal corporation (2005, Australian Journal of Human Rights). Further findings from the data were presented in Beth’s paper to the 2007 Australian Law and Society Conference on “Legal Representation and Success in Federal Discrimination Claims,” establishing the strong correlation between lack of legal representation and failure in discrimination claims in federal courts.

60 Melbourne Law School Research Report 2007 Beth Gaze

Beth is currently working on several major research Finally, with Professor Belinda Fehlberg, Beth is projects funded by the Australian Research Council. First, undertaking a research project examining the impact in partnership with the Victorian Equal Opportunity and of recent welfare policy and process changes on the Human Rights Commission, she has been supervising Social Security Appeals Tribunal. This project draws on and advising on a project she devised and developed her extensive experience of administrative law decision- on Improving the Effectiveness of Australia’s Anti- making as a member of the Social Security Appeals discrimination Laws. A PhD student, Ms Dominique Tribunal and Student Assistance Review Tribunal (from Allen, has undertaken surveys of parties and advisors 1990 to 2002), and currently as a member of the Victorian to discrimination matters, and staff of the Commission Mental Health Review Board. This project will examine the with a view to identifying areas in which the law does not experience of applicants to the SSAT and the impact of operate effectively and could be improved. Ms Allen has recent changes to policy and processes. Data collected will also examined the operation of anti-discrimination laws be analysed comparatively with that on the UK to contrast in UK, Ireland, South Africa and the USA. As part of this and evaluate the effect of changes that have flowed project, Beth organised a workshop in November 2007 from increasing cost pressures on the tribunals and the on Australian anti-discrimination law and its future. The tightening and narrow targeting of social security laws. workshop was co-organised with Professor Margaret Thornton of the Australian National University, and was supported by the Academy of the Social Sciences in Australia and the Law School’s Centre for Employment and Labour Relations Law. It was attended by academics from law and social science disciplines, staff of anti- discrimination agencies in Australia and overseas, and lawyers in private and community legal practice who advise on discrimination matters. It provided a unique opportunity for cross disciplinary and cross-sector discussion among people with an interest in the operation of anti-discrimination law. This is an important step in Beth’s aim of supporting the development of a community of scholars and practitioners in the area of discrimination law in Australia, which until now has had little coordination. It is planned to produce a book of essays originating from the workshop during 2008. Beth is currently involved in two other major research projects. First with Associate Professor Carolyn Evans, she is carrying out a project exploring the conflict between non-discrimination and religious freedom, in law, principle, and practice. This is an emerging legal issue in many countries and involves many areas of activity, from access to and the treatment of employees in religious schools, to the contracting out of government welfare services to religious organisations. During 2008 data will be collected on the empirical components of the project.

Academic Research Profiles 61 Matthew Harding

Matthew Harding joined the Law School as a lecturer in 2005. Matthew is a graduate of the Law School, having been awarded an LLB degree (with first class honours) in 1998. In addition, he holds a BA (also with first class honours) from the University of Melbourne, as well as a BCL (degree conferred with distinction) and a DPhil from the University of Oxford. While studying for the BCL in 2000–2001, Matthew was a Chevening Scholar, and while studying for the DPhil in 2002–2005, he held a number of awards, including a British government Overseas Research Studentship and a Clarendon Fund Bursary from the University of Oxford. During 2002–2003, Matthew held a research fellowship awarded by the Andrew Mellon Foundation in connection with ‘Theory and Politics of Civil Society’, a major international seminar series held in Oxford in that academic year. Matthew’s research interests are wide-ranging and he has participated in seminars and conferences on jurisprudence, sociology and civil rights. However, his current research interests are primarily in the doctrines and remedies of equity, the law of property, and the law of obligations. His DPhil thesis, which was conferred in May 2007, examined the moral foundations of fiduciary law and specifically considered the frequently made claim that fiduciary relationships are grounded in trust. The thesis developed a theory of interpersonal trust and trustworthiness and considered principles of fiduciary law in light of that theory. The examiners – Professor John Gardner of Oxford and Professor of the LSE – were of the view that parts of the thesis, which made contributions both to moral philosophy and to law, promised to be of ‘lasting importance’. Since completing his DPhil, Matthew’s research interests have turned to a number of topics. One is the relationship between the statutory principle of indefeasibility of Torrens title and the equitable principle that in certain circumstances a person ought to be liable for receiving property from, or assisting, a defaulting trustee. This research has been published as ‘Barnes v Addy Claims and the Indefeasibility of Torrens Title’ (2007) 31 Melbourne University Law Review 343. Another topic is the question of what precise obligations are owed by those occupying fiduciary roles, and Matthew’s research in this area has been published as ‘Two Fiduciary Fallacies’ (2007) 2 Journal of Equity 1. Both topics are of particular interest to private lawyers at present in light of recent High Court authority.

62 Melbourne Law School Research Report 2007 Matthew Harding

During 2007, Matthew also carried out research into the law of charities in England. That law has changed considerably in recent years owing to legislative reform. One consequence is that it is no longer certain how English courts will ascertain whether a trust for religious purposes is charitable in law. Matthew’s research, which will be published in early 2008 in the Modern Law Review, entailed a detailed analysis of the approaches that might be available to courts in light of existing case law and the jurisprudence relating to the European Convention on Human Rights that was introduced into England by the Human Rights Act of 1998. Matthew’s research in 2008 will concentrate again on at least three different topics. The first is the way in which systems that confer land title by registration respond to fraud. This research, which Matthew will undertake with Professor Michael Bryan of the Law School and with the assistance of a Faculty Small Grant, will take the form of a comparative study of jurisdictions in Australia, New Zealand, Canada and England and will result in the presentation of a paper at the 7th SLS Conference on Property Law to be held in April 2008 at Queen’s College, Cambridge. The second topic is how the concept of desert figures in private law, taking as a case study the award of allowances to fiduciaries who have acted in breach of obligation but have nonetheless expended time, effort and skill in doing so. This research will result in a paper to be delivered at the Obligations IV Conference which will be held in Singapore at the end of July 2008. Thirdly, together with Dr Amir Kordvani of the Law School, Matthew will undertake a comparative study of the charitable trust and its analogue in Islamic law, the waqf khairi, with a view to demonstrating that the two institutions, although they emerge from different legal traditions, are nonetheless conceptually alike. Finally, Matthew has been invited to contribute in 2008 to the Oxford Australian Legal Dictionary.

Academic Research Profiles 63 Stuart Kaye

Professor Stuart Kaye’s area of research expertise is international law, particularly the law of the sea. He also has an interest in international humanitarian law, and is currently Associate Director of the Asia Pacific Centre for Military Law within the Law School, and is the Chairman of the Australian International Humanitarian Law Dissemination Committee for the Australian Red Cross. Stuart graduated with a BA, an LLB(Hons) and an LLM(Hons) from the University of Sydney, winning the Law Graduates’ Association Medal. He also holds a doctorate in law (JSD) from Dalhousie University, where he was a holder of a J. Fielding Sherwood Award. He was appointed to a chair in law at Melbourne Law School in 2006, after having been Dean of Law at the University of Wollongong since 2002. He is admitted as a barrister in New South Wales, Queensland and Tasmania, and is a Fellow of the Royal Geographical Society. Stuart’s research in the law of the sea has covered a range of areas, from questions of jurisdiction and enforcement of laws at sea, to maritime security and international environmental law. He has written a number of books including The Torres Strait, Australia’s Maritime Boundaries, currently in its second edition, and International Fisheries Management and over 50 other publications in relation to the law of the sea in international and Australian law journals. He is the only Australian member of the editorial board of Ocean Development and International Law, the leading international journal in the law of the sea. Some of Stuart’s research has been directed at issues of maritime jurisdiction, particularly maritime boundary delimitation. This area deals with dividing jurisdictional control between States over extensive areas of ocean under national control – most notably the 200 nautical mile exclusive economic zone, and the continental shelf. Determining maritime boundaries is an essential concern of States, as they determine control over the resources of the sea, including fisheries and offshore oil and gas. Stuart is currently part of an ARC Discovery project considering the impact that maritime jurisdiction and boundaries have on regional stability and international trade through the Asia-Pacific. He has also worked with the Commonwealth Secretariat in capacity-building projects in the South Pacific and Africa in 2005 and 2007 respectively, looking at national legal and technical challenges in States successfully concluding maritime boundaries with their neighbours.

64 Melbourne Law School Research Report 2007 Stuart Kaye

An ongoing area of Stuart’s research relates to legal questions affecting Antarctica and the Southern Ocean. The Antarctic Treaty System establishes a complex series of international instruments designed to preserve the status quo in respect of territorial claims to the continent. These arrangements have come under increasing pressure in recent times due to greater levels of human activity in the Antarctic. Stuart is currently working on an ARC-funded project with researchers in Australia and Canada looking at issues in regulation in the Polar Regions. In 2000, Stuart was nominated by Australia to the list of arbitrators to deal with disputes under the Environment Protocol to the Antarctic Treaty, and he is also an Honorary CRC Fellow of the Antarctic Climate and Ecosystems Co-operative Research Centre at the . Stuart is also a legal officer in the Royal Australian Navy Reserve, providing advice in respect of operations and international law. This follows a tradition of the Navy using Australian academics to provide international law advice, which in the past have included the late Professor Dan O’Connell, Professors Ivan Shearer and Don Rothwell. In recent times, Stuart has been actively involved with the newly-established Border Protection Command, and in 2005 he chaired a major legislative review of maritime legislation for Australian Customs and the Defence Department, with a view to better coordination and rationalisation of enforcement powers offshore used by the new agency. He is also presently working as part of a trans-Tasman group looking at emerging issues in the burgeoning area of maritime security, particularly in relation to the legal responses to threats posed against installations, pipelines and cables offshore.

Academic Research Profiles 65 66 Melbourne Law School Research Report 2007 Published Research

67 Published Research

Books Authored McCormack, T and Saunders, C, Sir Ninian Stephen: A Austin, R and Ramsay, I, Ford’s Principles of Corporations Tribute, Miegunyah Press, Australia (2007) Law (13th ed), LexisNexis Butterworths, Australia (2007) McVeigh, S, Jurisprudence of Jurisdiction, Routledge- Beard, J, The Political Economy of Desire: International Cavendish, United Kingdom (2007) Law, Development and the Nation State, Routledge- Cavendish, United Kingdom (2007) Book Chapters Ali, P, ‘Credit Derivatives’ in P Ali (ed), Secured Finance Biddulph, S, Legal Reform and Administrative Detention Transactions, Globe Business Publishing, United Kingdom Powers in China, Cambridge University Press, United (2007), 223–241 Kingdom (2007) Ali, P, ‘Intellectual Property’ in P Ali (ed), Secured Finance Evans, S, Fenwick, C, Saunders, C, Tham, J, Transactions, Globe Business Publishing, United Kingdom Donaldson, M, Taylor, I and Horan, C, Work Choices Case: (2007), 69–81 Analysis and Implication, Thomson Lawbook Co., Australia (2007) Ali, P, ‘Securitization and Venture Capital Fundraising’ in G Gregoriou, M Kooli and R Kraeussl (eds), Venture Capital in Foster, M, International Refugee Law and Socio-Economic Europe, Elsevier, United States (2007), 365–370 Rights: Refuge from Deprivation, Cambridge University Press, United States (2007) Ali, P, ‘Security Trustees’ in P Ali (ed), Secured Finance Transactions, Globe Business Publishing, United Kingdom Hanrahan, P, Funds Management in Australia: Officers’ (2007), 33–39 Duties and Liabilities, LexisNexis, Australia (2007) Ali, P, ‘Share Buybacks, Institutional Investors, and Hanrahan, P, Ramsay, I and Stapledon, G, Commercial Corporate Control’ in G Gregoriou and L Renneboog Applications of Company Law (8th ed), CCH Australia, (eds), Corporate Governance and Regulatory Impact on Australia (2007) Mergers and Acquistion: Research and Analysis on Activity Nicholson, P, Borrowing Court Systems: The Experience Worldwide Since 1990, Elsevier, United States (2007), of Socialist Vietnam, Martinus Nijhoff Publishers, 259–273 Netherlands (2007) Ali, P, ‘Taxable Asset Sales in Securitization’ in C Read and Parker, C and Evans, A, Inside Lawyers’ Ethics, Cambridge G Gregoriou (eds), International Taxation Handbook: Policy, University Press, United States (2007) Practice, Standards, and Regulation, Elsevier Science, Voon, T, Cultural Products and the World Trade United Kingdom (2007), 99–110 Organization, Cambridge University Press, United Kingdom Ali, P, ‘The ‘Best of Both Worlds’ Fund: Exchange Traded (2007) Funds in Australia’ in G Gregoriou (ed), Diversification Waugh, J, First Principles: The Melbourne Law School and Portfolio Management of Mutual Funds, Palgrave 1857–2007, Miegunyah Press, Australia (2007) Macmillan, United Kingdom (2007), 198–205 Ali, P, ‘The Use of Equity Swaps in Mergers’ in G Books Edited Gregoriou and K Neuhauser (eds), Mergers and Ali, P, Secured Finance Transactions, Globe Law and Acquistions: Current Issues, Palgrave Macmillan, United Business, United Kingdom (2007) Kingdom (2007), 178–187 Bryan, M, Private Law in Theory and Practice, Routledge- Ali, P, ‘Risk Securitization’ in S Schwarcz (ed), Structured Cavendish, United Kingdom (2007) Finance: A Guide to the Principles of Asset Securitization, Practising Law Institute, United States (2007), 12.1–12.22 Gelber, K and Stone, A, Hate Speech and Freedom of Speech in Australia, Federation Press, Australia (2007) Bosland, J, ‘An Analogue ‘House of Cards’ in the Digital Era: The Shifting Structures of Television Broadcasting Kenyon, A, TV Futures: Digital Television Policy in Policy in Australia’ in A Kenyon (ed), TV Futures: Digital Australia, Melbourne University Press, Australia (2007) Television Policy in Australia, Melbourne University Press, Lindell, G, The Mason Papers, Federation Press, Australia Australia (2007), 315–342 (2007) Brennan, D, ‘Flag Waving in the Digital Jungle’ in Lindsey, T, Law Reform in Developing and Transitional A Kenyon (ed), TV Futures: Digital Television Policy, States, Routledge, United Kingdom (2007) Melbourne University Press, Australia (2007) 214–241

68 Melbourne Law School Research Report 2007 Published Research

Bryan, M, ‘The Criteria for the Award of Proprietary Evans, S and Evans, C, ‘Parliamentary Deliberation about Remedies: Rethinking the Proprietary Base’ in M Bryan Religious Vilification Legislation’ in K Gelber and A Stone (ed), Private Law in Theory and Practice, Routledge- (eds), Hate Speech and Freedom of Speech in Australia, Cavendish, United Kingdom (2007), 271–288 Federation Press, Australia (2007), 170–193 Butt, S and Lindsey, T, ‘Intellectual Property, Civil Farrow, I and Jogarajan, S, ‘ASEAN Tax Regimes: Law and the Failure of Law in Indonesia: Can Criminal Impediment or Pathway to Greater Integration’ in D Hew Enforcement of Economic Law Work in Developing (ed), Brick by Brick – The Building of an ASEAN Economic Countries’ in T Lindsey (ed), Law Reform in Developing Community, Asia Pacific Press, Australia (2007), 132–143 and Transitional States, Routledge, United Kingdom (2007), Fehlberg, B and Hunter, R, ‘Children’s Contact Services 391–412 in Australia: The Referral Process’ in M Maclean (ed), Christie, A and Moritz, S, ‘Harnessing Minor Innovation Parenting after Partnering, Hart Publishing, United States – National Studies: Australia’ in U Suthersanen, G Dutfield (2007), 169–191 and K Boey Chow (eds), Innovation Without Patents: Fenwick, C, ‘Labour Law Reform in Namibia: Transplant Harnessing the Creative Spirit in a Diverse World, Edward or Implant?’ in T Lindsey (ed), Law Reform in Developing Elgar Publishing, United Kingdom (2007), 119–141 and Transitional States, Routledge, United Kingdom (2007), Christie, A, Waller, S and Weatherall, K, ‘Exporting the 317–343 DMCA through Free Trade Agreements’ in C Heath and Godden, L, ‘A Jurisdiction of Body and Desire: Exploring A Kamperman Sanders (eds), Intellectual Property & Free the Boundaries of Bodily Control in Prostitution Law’ in S Trade Agreements, Hart Publishing, United States (2007), McVeigh (ed), Jurisprudence of Jurisdiction, Routledge- 211–24 3 Cavendish, United Kingdom (2007), 181–201 Dabscheck, B, ‘Moving Beyond Ethnicity: Soccer’s Godden, L and Tehan, M, ‘Translating Native Title to Evolutionary Progress’ in B Stewart (ed), The Games Individual ‘Title’ in Australia: Are Real Property Forms are Not the Same: The Political Economy of Football in and Indigenous Interests Reconcilable?’ in E Cooke (ed), Australia, Melbourne University Press, Australia (2007), Modern Studies in Property Law, Hart Publishing, United 199–236 States (2007), 263 –294 Dabscheck, B, ‘Collective Bargaining and Rugby in the Gregoriou, G, Vita, G and Ali, P, ‘Money Laundering: Every Professional Era’ in M Bushby and T Hickie (eds), Rugby Financial Transaction Leaves a Paper Trail’ in C Read and History: The Remaking of the Class Game, Australian G Gregoriou (eds), International Taxation Handbook: Policy, Society for Sports History, Australia (2007), 51–71 Practice, Standards, and Regulation, Elsevier Science, Davies, M, ‘Classification Society Liability in the United Kingdom (2007), 311–322 United States’ in D Thomas (ed), Liability Regimes in Hanrahan, P, ‘ASIC v Citigroup: Investment Banks, Contemporary Maritime Law, Informa, United Kingdom Conflicts of Interest and Chinese Walls’ in J O’Brien (ed), (2007), 129–147 Private Equity, Corporate Governance and the Dynamics Dorsett, S and McVeigh, S, ‘Questions of Jurisdiction’ in of Capital Market, Imperial College Press, United Kingdom S McVeigh (ed), Jurisprudence of Jurisdiction, Routledge- (2007), 117–142 Cavendish, United Kingdom (2007), 3–18 Hudson, E, Kenyon, A and Christie, A, ‘Modelling Duxbury, A, ‘The Impact and Significance of Teoh Copyright Exceptions: Law and Practice in Australian and Lam’ in M Groves and H Lee (eds), Australian Cultural Institutions’ in F Macmillan (ed), New Directions in Administrative Law: Fundamentals, Principles and Copyright Law, Edward Elgar Publishing, United Kingdom Doctrines, Cambridge University Press, Australia (2007), (2007), 279–304 299–315 Kaye, S, ‘IUU Fishing in the Southern Ocean: Challenge Evans, C, Hood, A and Moir, J, ‘From Local to Global and and Response’ in G Triggs and A Riddell (eds), Antarctica: Back Again: Religious Freedom and Women’s Rights’ in J Legal and Environmental Challenges for the Future, BIICL Chen, G Puig and G Walker (eds), Rights Protection in the Publishing, United Kingdom (2007), 39–59 Age of Global Anti-Terrrorism, Federation Press, Australia Kenyon, A, ‘Changing Channels: Media Studies, Copyright (2007), 112–130 Law and Communications Policy’ in A Kenyon (ed), TV Futures: Digital Television Policy in Australia, Melbourne University Press, Australia (2007), 1–23

Published Research 69 Published Research

Kurtz, J, ‘National Treatment, Foreign Investment and Otto, D, ‘Making Sense of Zero Tolerance Policies Regulatory Autonomy: The Search for Protectionism or in Peacekeeping Sexual Economies’ in V Munro and Something More?’ in P Kahn and T Walde (eds), New C Stychin (eds), Sexuality and the Law: Feminist Aspects of International Investment Law, Martinus Nijhoff Engagements, Routledge-Cavendish, United Kingdom Publishers, Netherlands (2007), 311–351 (2007), 259–282 Lindell, G, ‘Governor-General’ in T McCormack and Pahuja, S, ‘Rights as Regulation: The Integration of C Saunders (eds), Sir Ninian Stephen: A Tribute, Miegunyah Development and Human Rights’ in B Morgan (ed), The Press, Australia (2007), 26–56 Intersection of Rights and Regulation: New Directions in Lindell, G, ‘Introduction’ in G Lindell (ed), The Mason Sociolegal Scholarship, Ashgate, United Kingdom (2007), Papers, Federation Press, Australia (2007), 1–10 167–191 Lindsey, T, ‘Legal Infrastructure and Governance Reform Pahuja, S, ‘The Necessary Inclusion of the Excluded: The in Post-Crisis Asia: The Case of Indonesia’ in T Lindsey Inherent Plurality of FMI’s Conditionality’ in O Correas (ed), (ed), Law Reform in Developing and Transitional States. Pluralismo Juridico: Otros Horizontes, Coyoacan Editions, Routledge, United Kingdom (2007), 3–41 Mexico (2007), 295–320 Lindsey, T, Hooker, MB, Clarke, R and Kingsley, J, Parker, C, ‘Meta-Regulation: Legal Accountability for ‘Shari’a Revival in Aceh’ in R Feener and M Cammack Corporate Social Responsibility’ in D McBarnet, A (eds), Islamic Law in Contemporary Indonesia: Ideas and Voiculescu and T Campbell (eds), The New Corporate Institutions, Harvard University Press, United States (2007), Accountability, Cambridge University Press, United States 216–254 (2007), 207–237 Luntz, H, ‘The Use of Policy in Negligence Cases in Rhoades, H, ‘The Changing Face of Contact in Australia’ the ’ in M Bryan (ed), Private Law in M MacLean (ed), Parenting after Partnering: Containing in Theory and Practice, Routledge-Cavendish, United Conflict after Separation, Hart Publishing, United Kingdom Kingdom (2007), 55–83 (2007), 129–145 McCormack, T, ‘International Peace Envoy’ in Saunders, C, ‘Chair of the Constitutional Centenary T McCormack and C Saunders (eds), Sir Ninian Stephen: Foundation’ in T McCormack and C Saunders (eds), Sir A Tribute, Miegunyah Press (Melbourne UP), Australia Ninian Stephen: A Tributie, Miegunyah Press (Melbourne (2007), 119–155 UP), Australia (2007), 57–79 McVeigh, S, ‘Subjects of Jurisdiction: The Dying, Northern Saunders, C, ‘Comparative Constitutional Law in the Territory, Australia, 1995–1997’ in S McVeigh (ed), Courts: Is there a Problem?’ in J Holder and C O’Cinneide Jurisprudence of Jurisdiction, Routledge-Cavendish, United (ed), Current Legal Problems 2006, Oxford University Kingdom (2007), 202–221 Press, United Kingdom (2007), 91–127 Nicholson, P, ‘Comparative Law and Legal Transplants Saunders, C, ‘Comparing Federal Constitutions’ in between Socialist States: An Historical Perspective’ in T R Grote, I Hartel, K Hain, T Schmidt, T Schmitz, Lindsey (ed), Law Reform in Developing and Transitional G Schuppert and C Winterhoff (eds), Die Ordnung der States, Routledge, United Kingdom (2007), 143–158 Freiheit: Festschrift fur Christian Starck zum siebzigsten Geburtstag, Moir Siebeck, Germany (2007), 937–952 Nicholson, P, ‘Vietnamese Courts: Contemporary Interactions Between Party-State and Law’ in S Balme Saunders, C, ‘Judicial Dialogue in Common Law and M Sidel (eds), Vietnam’s New Order: International Countries’ in P Bon, R Ghevontian, D Maus, F Melin- Perspectives on the State and Reform in Vietnam, Palgrave Soucramanien and A Roux (eds), Renouveau du droit Macmillan, United States (2007), 178–197 Constitutionnel: Melanges en l’honneur de Louis Favoreu, Dalloz, France (2007), 413–428 Oswald, B, ‘The Creation and Control of Places of Protection During United Nations Peace Operations’ in Stewart ,M, ‘Tax Policy Transfer to Developing Countries: B Kondoch (ed), International Peacekeeping, Ashgate, Politics, Institutions and Experts’ in F Schui and H Nehring United Kingdom (2007), 320–343 (eds), Global Debates about Taxation, Palgrave Macmillan, United Kingdom (2007), 182–200 Orford, A, ‘Biopolitics and the Tragic Subject of Human Rights’ in E Dauphinee and C Masters (eds), The Logics of Stone, A, ‘How to Think About the Problem of Hate Biopower and the War on Terror: Living, Dying, Surviving, Speech: Understanding a Comparative Debate’ in K Gelber Palgrave Macmillan, United States (2007), 205–228 and A Stone (eds), Hate Speech and Freedom of Speech in Australia, Federation Press, Australia (2007), 59–80

70 Melbourne Law School Research Report 2007 Published Research

Tham, J, ‘Australian Terror Laws and Academic Freedom’ Chapman, A, ‘Uncovering the Normative Family of in J Turk and A Manson (eds), Free Speech in Fearful Parental Leave: Harvester, Law and the Household’ (2007) Times: After 9/11 in Canada, the U.S., Australia & Europe, 33 Hecate 28–42 James Lorimer & Company Limited, Canada (2007), Christie, A, ‘Cultural Institutions, Digitisation and 234–244 Copyright Reform’ (2007) 12 Media and Arts Law Review Wright, R, “So You Want to Tape off TV?’ Copyright Law, 279–291 Digital Television and Personal Use’ in A Kenyon (ed), TV Cooney, S, ‘China’s Labour Law, Compliance and Flaws in Futures: Digital Television Policy in Australia, Melbourne Implementing Institutions’ (2007) 49 Journal of Industrial University Press, Australia (2007), 196–213 Relations 673–686 Yi, Z and Shi, C, ‘Legal and Regulatory Developments Cooney, S, Biddulph, S, Kungang, L and Zhu, Y, ‘China’s of the Banking Industry in B Hu and X Quan (eds), The New Labour Contract Law: Responding to the Growing Financial and Legal Report of China 2007, Social Sciences Complexity of Labour Relations in the PRC’ (2007) 30 Academic Press, China (2007), 27–39 University of New South Wales Law Journal 786–801 Zhang, C and Shi, C, ‘The Regulatory Innovation: Analyses Dabscheck, B, ‘From Trickles of Silver to Rivers of Gold: of China’s Regulation and Implementation Rules on the The Transformation of Australian Professional Team Sports, Administration of Foreign Banks in B Hu and X Quan 1970 to 2007’ (2007) 23 Sporting Traditions 9–31 (eds), The Financial and Legal Report of China 2007, Social Sciences Academic Press, China (2007), 322–329 Davies, M, ‘Bypassing the Hague Evidence Convention: Private International Law Implications of the Use of Video Refereed Journal Articles and Audio Conferencing Technology in Transnational Litigation’ (2007) 55 American Journal of Comparative Law Ali, P, ‘Investing in the Environment: Some Thoughts 205–237 on the New Breed of Green Hedge Funds’ (2007) 12 Derivatives, Use, Trading & Regulation 351–357 Davis, L, ‘Creation and Protection of Trade Mark Rights in ‘Second Life’: Inadequacies in Australia’s Current Law’ Anderson, K, Ramsay, I, Marshall, S and Mitchell R, (2007) 18 Australian Intellectual Property Journal 183–200 ‘Union Shareholder Activism in the Context of Declining Labour Law Protection: Four Australian Case Studies’ Dent, C, ‘To See Patents as Devices of Uncertain (but (2007) 15 Corporate Governance 45–56 Contingent) Quality: A Foucaultian Perspective’ (2007) 2 Intellectual Property Quarterly 148–163 Barnes, A, Josev, T, Lenne, J, Marshall, S, Mitchell, R, Ramsay, I and Rider, C, ‘Employee Share Ownership Dent, C and Cook, I, ‘Stare Decisis, Repetition and Plans: Evaluating the Role of Tax and Other Factors using Understanding Common Law’ (2007) 16 Griffith Law Two Case Studies’ (2007) 35 Australian Business Law Review 131–150 Review 73–92 Dorsett, S and McVeigh, S, ‘The Persona of the Jurist in Barnett, K, ‘The Mirror of Title Crack’d from Side to Side? Salmond’s Jurisprudence: On the Exposition of ‘What Law The Amazing Half-life of the Equitable Mortgage’ (2007) 14 is..’ (2007) 38 The Victoria University of Wellington Law Australian Property Law Journal 238–258 Review 1–26 Beaton-Wells, C, ‘Capturing the Criminality of Hard Core Duke, A, ‘A More Efficient Use of Efficiencies in Merger Cartels: The Australian Proposal’ (2007) 31 Melbourne Authorisation Determinations’ (2007) 35 Australian University Law Review 675–704 Business Law Review 278–292 Black, C, McVeigh, S and Johnstone, R, ‘Of the South’ Duke, A, ‘A Universal Duty of Good Faith: An Economic (2007) 16 Griffith Law Review 299–309 Perspective’ (2007) 33 Monash University Law Review 182–202 Bosland, J, ‘Regulating for Local Content in the Digital Audiovisual Environment: A View from Australia’ (2007) 18 Durham, H, ‘International Humanitarian Law and the Gods Entertainment Law Review 103 –113 of War: The Story of Athena versus Ares’ (2007) 8 The Melbourne Journal of International Law 248–528 Brennan, D, ‘Replevin and the Paradox of English Chattel Property’ (2007) 36 Common Law World Review 337–354 Duxbury, A, ‘Drawing Lines in the Sand – Characterising Conflicts for the Purposes of Teaching International Carney, T, Ramia, G and Chapman, A, ‘Comparativism, Humanitarian Law’ (2007) 8 The Melbourne Journal of the Labour-Social Policy Nexus and Intra-National Analysis: International Law 259–272 A Case Study’ (2007) 35 Policy and Politics 233–250

Published Research 71 Published Research

Duxbury, A, ‘Moving Towards or Turning Away from Greenberg, C, Regenbogen, S, Studdert, D, Lipsitz, Institutions? The Future of International Organizations in S, Rogers, S, Zinner, M and Gawande, A, ‘Patterns of Asia and the Pacific’ (2007) 11 Singapore Year Book of Communication Breakdowns Resulting in Injury to Surgical International Law 1–17 Patients’ (2007) 205 Journal of the American College of Evans, A and Howe, J, ‘Enhancing Corporate Surgeons 530–533 Accountability through Contextual Ethical Exercises in Haller, L and Green, H, ‘Solicitor’s Swan Song?: A Corporate Law Teaching’ 7 Journal of Corporate Law Statistical Update on Lawyer Discipline in Queensland’ Studies 337–355 (2007) 19 Bond Law Review 140–167 Foerster, A, ‘Victoria’s New Environmental Water Hanrahan, P, ‘Directors’ Accountability in Funds Reserve: What’s in a Name?’ (2007) 11 Australasian Management Companies’ (2007) 4 JASSA – Journal of the Journal of Natural Resources Law and Policy 145–180 Securities Institute of Australia 34–40 Forrest, L, Delatycki, M, Skene, L and Aitken, M, Harding, M, ‘Barnes v Addy Claims and the Indefeasibility ‘Communicating Genetic Information in Families – A of Torrens Title’ (2007) 31 Melbourne University Law Review of Guidelines and Position Papers’ (2007) 15 Review 343–366 European Journal of Human Genetics 612–618 Harding, M, ‘Two Fiduciary Fallacies’ (2007) 2 Journal of Foster, M, ‘Protection Elsewhere: The Legal Implications Equity 1–25 of Requiring Refugees to Seek Protection in Another State’ Harrison-Smith, L, ‘Changing Sex on the Birth Register (2007) 28 Michigan Journal of International Law 223–286 – Leave Room for ‘I’! Regulation and Repression: of Gallagher, T, Studdert, D and Levinson, W, ‘Current Transsexual Identities in Theory and Law’ (2007) 10 Concepts: Disclosing Harmful Medical Errors to Patients’ Flinders Journal of Law Reform 211–239 (2007) 356 New England Journal of Medicine 2713–2719 Henckels, C, ‘The Ostensible ‘Flexibilities’ in TRIPS: Can Gans, J, ‘Catching Bradley Murdoch: Tweezers, Pitchforks Essential Pharmaceuticals be Excluded from Patentability & the Limits of DNA Sampling’ (2007) 19 Current Issues in in Public Health Crises?’ (2007) 32 Monash University Law Criminal Justice 34–48 Review 335–356 Gans, J, ‘DNA Identification, Privacy and the Irrelevance of Hoad R, ‘Brave New World or Much Ado About Nothing? Australian Law’ (2007) 3 Privacy Law Bulletin 110 –116 Practical Effect of Proposed Changes to Trade Practices Gans, J, ‘Much Repented: Consent to DNA Sampling’ Act, s 51(3)’ (2007) 18 Australian Intellectual Property (2007) 3 University of New South Wales Law Journal Journal 201–229 579–608 Howe, J and Landau, I, “Light Touch’ Labour Regulation Gans, J, ‘The Peter Falconio Investigation: Needles, Hay by State Governments in Australia’ (2007) 31 Melbourne and DNA’ (2007) 18 Current Issues in Criminal Justice University Law Review 367–399 415–430 Hudson, E and Kenyon, A, ‘Digital Access: The Impact of Garnett, R and Steele, K, ‘In Search of an Appropriate Copyright in Digitisation Practices in Australian Museums, Standard for Reasons in Arbitral Awards’ (2007) 10 Galleries, Libraries and Archives’ (2007) 30 University of International Arbitration Law Review 111–116 New South Wales Law Journal 12–52 Godden, L, ‘The Invention of Tradition: Property Law as Hudson, E and Kenyon, A, ‘Without Walls: Copyright Law a Knowledge Space for the Appropriation of the South’ and Digital Collections in Australian Cultural Institutions’ (2007) 16 Griffith Law Review 375–410 (2007) 4 SCRIPT-ed 197–213 Godden, L and Peel, J, ‘The Environment Protection Jogarajan, S, ‘Purpose in Consolidation – No More and Biodiversity Conservation Act 1999 (Cth): Dark Sides Purpose?’ (2007) 36 Australian Tax Review 253–268 of Virtue’ (2007) 31 Melbourne University Law Review Jogarajan, S, ‘Australian FDI in India – The Impact of 106–145 Bilateral Tax Treaties’ (2007) 11 Asia-Pacific Journal of Godwin, A, ‘A Lengthy Stay? The Impact of the PRC Taxation 47–60 Enterprise Bankruptcy Law on the Rights of Secured Jones, M, Marshall, S and Mitchell, R, ‘Corporate Social Creditors’ (2007) 30 University of New South Wales Law Responsibility and the Management of Labour in Two Journal 755–773 Australian Mining Industry Companies’ (2007) 15 Corporate Governance 57–67

72 Melbourne Law School Research Report 2007 Published Research

Kachalia, A, Gandhi, T, Gawande, A, Puopolo, A, Yoon, C, Malkin, I and Voon, T, ‘Social Hosts’ Responsibility for Poon, E, Thomas, E, Brennan, T and Studdert, D, ‘Missed their Intoxicated Guests: Where Courts Fear to Tread’ and Delayed Diagnoses in the Emergency Department: (2007) 15 Torts Law Journal 62–86 A Study of Closed Malpractice Claims from 4 Liability Mathews, R, ‘WMD Arms Control Agreements in the Insurers’ (2007) 49 Annals of Emergency Medicine Post-September 11 Security Environment: Part of the 196–205 ‘Counter-Terrorism Toolbox’’ (2007) 8 The Melbourne Kaye, S, ‘Threats from the Global Commons: Problems Journal of International Law 292–310 of Jurisdiction and Enforcement’ (2007) 8 The Melbourne McCormack, T, ‘David Hicks and the Charade of Journal of International Law 185–197 Guantánamo Bay’ (2007) 8 The Melbourne Journal of Kee, T, ‘Efficiency, Equity and Ethics: Examining the Policy International Law 273–291 Behind Compulsory Licensing and Access to Medicines McDougall, C, ‘When Law and Reality Clash – The in Developing Countries’ (2007) 18 Australian Intellectual Imperative of Compromise in the Context of the Property Journal 39–62 Accumulated Evil of the Whole: Conditions for the Exercise Kenyon, A, ‘Not Seeing Justice Done: Suppression Orders of the International Criminal Court’s Jurisdiction over the in Australian Law and Practice’ (2007) 27 Adelaide Law Crime of Aggression’ (2007) 7 International Criminal Law Review 279–310 Review 277–333 Kenyon, A, ‘Perfecting Polly Peck: Defences of Truth and McLaughlin, R and Oswald, B, “Wilful Killing’ During Opinion in Australian Defamation Law and Practice’ (2007) Armed Conflict: Is There a Defence of Proportionality in 29 Sydney Law Review 651–682 Australia?’ (2007) 18 Criminal Law Forum 1–41 Kenyon, A and Marjoribanks, T, ‘Transforming Media Mello, M, Studdert, D, Schumi, J, Brennan, T and Sage, Markets: The Cases of Malaysia and Singapore’ (2007) 5 W, ‘Changes in Physician Supply and Scope of Practice Australian Journal of Emerging Technologies and Society During a Malpractice Crisis: Evidence from Pennsylvania’ 103 –118 (2007) 26 Health Affairs w425–w435 Kesselheim, A and Studdert, D, ‘The Role of Professional Mellow, M, Studdert, D, Thomas, E, Yoon, C and Organizations in Regulating Physician Expert Witness Brennan, T, ‘Who Pays for Medical Errors? An Analysis Testimony’ (2007) 298 Journal of the American Medical of Adverse Event Costs, the Medical Liability System, Association 2907–2909 and Incentives for Patient Safety Improvement’ (2007) 4 Kurtz, J, ‘A Look Behind the Mirror: Standardisation, Journal of Empirical Legal Studies 835–860 Institutions and the WTO SPS and TBT Agreements’ Mitchell, A, ‘The Legal Basis for Using Principles in WTO (2007) 30 University of New South Wales Law Journal Disputes’ (2007) 10 Journal of International Economic Law 504–523 795–835 Larcombe, W, McCosker, A and O’Loughlin, K, Orford, A, ‘Ritual, Mediation and the International Laws of ‘Supporting Education PhD and DEd Students to Become the South’ (2007) 16 Griffith Law Review 353–374 Confident Academic Writers: An Evaluation of Thesis Oswald, B, ‘Detention in Military Operations: Some Writers’ Circles’ (2007) 4 Journal of University Teaching & Military, Political and Legal Aspects’ (2007) 46 Revue de Learning Practice 54–63 Droit Militaire et de Droit de la Guerre 341–358 Lewers, N, Rhoades, H and Swain, S, ‘Judicial and Couple Oswald, B, ‘Developing a Course on the Law of Peace Approaches to Contributions and Property: The Dominance Operations: Method and Practice-Making Ends Meet’ and Difficulties of a Reciprocity Model’ (2007) 21 Australian (2007) 4 Journal of Peace Education 57–74 Journal of Family Law 123–142 Oswald, B, ‘The Law on Military Occupation: Answering Lim, A and Christie, A, ‘A Comparative Analysis of the the Challenges of Detention During Contemporary Australian Patent Office’s Examination of Biotechnology Peace Operations’ (2007) 8 The Melbourne Journal of Reach-Through Patent Claims’ (2007) 33 Monash International Law 311– 326 University Law Review 115–142 Otto, D, ‘The Gastronomics of TWAIL’s Feminist Lindell, G, ‘The Combet Case and the Appropriation of Flavourings: Some Lunch-Time Offerings’ (2007) 9 Taxpayers’ Funds for Political Advertising – An Erosion of International Community Law Review 345–352 Fundamental Principles?’ (2007) 66 Australian Journal of Public Administration 307–328

Published Research 73 Published Research

Pahuja, S, ‘Beheading the Hydra: Legal Positivism and Sheargold, M, ‘Copyright: Defining ‘Musical Works’ in Development’ (2007) 1 Law, Social Justice and Global Common Law Countries’ (2007) 18 Australian Intellectual Development 1–19 Property Journal 96–109 Parker, C and Nielsen, V, ‘What Do Australian Businesses Sheehan, G, Carson, R, Fehlberg, B, Hunter, R, Tomison, Think of the ACCC, and Does It Really Matter?’ (2007) 35 A, Ip, R and Dewar, J, ‘Divergent Expectations and Federal Law Review 187–239 Experience: An Empirical Study of the Use Children’s Parrott, L, ‘Postcolonial Inroads into the Native Title Contact Services in Australia’ (2007) 21 International Process’ (2007) 7 Journal of Indigenous Policy 53–67 Journal of Law, Policy and the Family 275–309 Parrott, L, ‘Restoring the Delicate Balance: Judicial Shekhar, C and Stapledon, G, ‘Governance Structures Review of Executive Detention in a Time of Terror’ (2007) of Initial Public Offerings in Australia’ (2007) 15 Corporate 3 The High Court Quarterly Review 1–37 Governance 1177–1189 Peel, J, ‘International Law and the Legitimate Shi, C, ‘Protecting Investors in China Through Multiple Determination of Risk: Is Democratising Expertise the Regulatory Mechanisms and Effective Enforcement’ Answer?’ (2007) 38 The Victoria University of Wellington (2007) 24 Arizona Journal of International & Comparative Law Review 363–380 Law 451–497 Peel, J, ‘The Role of Climate Litigation in Australia’s Shi, C, ‘Recent Ownership Reform and Control of Central Response to Global Warming’ (2007) 24 Environmental and State-Owned Enterprises in China: Taking One Step at Planning Law Journal 90–105 a Time’ (2007) 30 University of New South Wales Law Journal 855–866 Peel, J, ‘When (Scientific) Rationality Rules: (Mis) Application of the Precautionary Principle in Australian Singh, H, Thomas, E, Petersen, L and Studdert, D, Mobile Phone Tower Cases: Telstra Corporation Limited v ‘Medical Errors Involving Trainees: A Study of Closed Hornsby Shire Council’ (2007) 19 Journal of Environmental Malpractice Claims from 5 Insurers’ (2007) 167 Archives of Law 103–120 Internal Medicine 2030–2036 Regenbogen, S, Greenberg, C, Studdert, D, Lipsitz, S, Skene, L, ‘Legal Rights in Human Bodies, Body Parts and Zinner, M and Gawande, A, ‘Patterns of Technical Error Tissue’ (2007) 4 Journal of Bioethical Inquiry 129–133 Among Surgical Malpractice Claims: An Analysis of Skene, L, ‘Undertaking Research in Other Countries: Strategies to Prevent Injury to Surgical Patients’ (2007) 246 National Ethico-Legal Barometers and International Ethical Annals of Surgery 705 –711 Consensus Statements’ (2007) 4 PLoS Medicine 243–247 Richardson, M, ‘Candid Camera’ (2007) 66 Meanjin Studdert, D, Mello, M, Gawande, M, Brennan, T and 83–87 Wang, Y, ‘Disclosure of Medical Injury to Patients: An Richardson, M and Duke, A, ‘Hello!, Nike and Kazza: Improbable Risk Management Strategy’ (2007) 26 Health Bargaining in the Shadow of Intellectual Property Law’ Affairs 215–226 (2007) 18 Entertainment Law Review 56–61 Studdert, D, Mello, M, Jedrey, C and Brennan, T, Ricketson, S, ‘Trade Mark Liability Issues Arising Out of ‘Regulatory and Judicial Oversight of Nonprofit Hospitals’ Internet Advertising’ (2007) 12 Media and Arts Law Review (2007) 356 New England Journal of Medicine 625–631 1–28 Studdert, D, Mello, M, Levy, M, Gruen, R, Dunn, E, Rotstein, F and Weatherall, K, ‘Filing and Settlement of Orav, E and Brennan, T, ‘Geographic Variation in Informed Patent Disputes in the Federal Court: 1995–2005’ (2007) Consent Law: Two Standards for Disclosure of Treatment 68 Intellectual Property Forum 65–74 Risks’ (2007) 4 Journal of Empirical Legal Studies 103–124 Rush, P and Kenyon, A, ‘Passages, or the Medium of Studdert, D and Mellow, M, ‘When Tort Resolutions are Authority’ (2007) 11 Law Text Culture 1–12 ‘Wrong’: Predictors of Discordant Outcomes in Medical Malpractice Litigation’ (2007) 36 Journal of Legal Studies Saunders, C, ‘The Interesting Times of Louis Favoreu’ S47–S78 (2007) 5 International Journal of Constitutional Law 1–16 Tang, S, ‘A Neoclassical Analysis of the Equitable Doctrine Sharpe, M and Parker, C, ‘A Bang or a Whimper? The of Unconscionable Dealing’ (2007) 27 Adelaide Law Impact of ACCC Unconscionable Conduct Enforcement’ Review 227–266 (2007) 15 Trade Practices Law Journal 139–162

74 Melbourne Law School Research Report 2007 Published Research

Tham, J, ‘A Risk-Based Analysis of Australia’s Bosland, J and Wright, R, ‘Australia: Copyright – Counterterrorism Financing Regime’ (2007) 34 Social Secondary Infringement by Authorisation – Hyperlinking’ Justice: A Journal of Crime, Conflict and World Order (2007) 18 Entertainment Law Review 37–39 138–152 Chan, E and Stewart, M, ‘Circles in the Sand: Creating Tham, J, ‘Towards an Understanding of Standard Pathways and Connections in Indigenous Legal Education’ Employment Relationships under Australian Labour Law’ (2007) 6 Indigenous Law Bulletin 16–17 (2007) 20 Australian Journal of Labour Law 123–159 Cooney, S, ‘Making Chinese Labor Law Work: The Tham, J and Ewing, K, ‘Limitations of a Charter of Rights Prospects for Regulatory Innovation in the People’s in the Age of Counter-Terrorism’ (2007) 31 Melbourne Republic of China’ (2007) 30 Fordham International Law University Law Review 462–498 Journal 1050–1097 Thiagarajan, M, Savulescu, J and Skene, L, ‘Deciding Dabscheck, B, ‘An American Hero: Curt Flood and About Life-Support: A Perspective on the Ethical and Legal His Struggle Against Organized Baseball’ (2007) 26 Framework in the United Kingdom and Australia’ (2007) 14 Australasian Journal of American Studies 30–40 Journal of Law and Medicine 583–596 Duxbury, A, ‘The Defence Power, Chapter III and White Tobin, J, ‘Seeking Clarity in Relation to the Principle of v Director of Military Prosecutions (2007) 235 ALR 455; Complementarity: Reflections on the Recent Contributions [2007] HCA 29’ (2007) 18 Public Law Review 233–239 of Some International Bodies’ (2007) 8 The Melbourne Evans, C, ‘Time for a Treaty? The Legal Sufficiency of the Journal of International Law 356–372 Declaration on the Elimination of all Forms of Intolerance Voon, T, ‘The End of Zeroing? Reflections Following the and Discrimination’ (2007) 3 Brigham Young University Law WTO Appellate Body’s Latest Missive’ (2007) 34 Legal Review 617–638 Issues of Economic Integration 211–230 Evans, C and Gaze, E, ‘Religious Freedom and Non- Voon, T and Mitchell, A, ‘Achieving a Common Market Discrimination Laws’ (2007) 16 Human Rights Defender for Telecommunications Services in Australia and New 5–6 Zealand’ (2007) 26 Australian Yearbook of International Law Evans, S and Evans, C, ‘Australian Parliaments and 149–197 the Protection of Human Rights’ (2007) 47 Papers on Walker, K, ‘The Same-Sex Marriage Debate In Australia’ Parliament 17–39 (2007) 11 International Journal of Human Rights 109–130 Jogarajan, S and Stewart, M, ‘Review Essay – Harmful Walker, K, ‘Damned Whores and the Border Police: Tax Competition: Defeat or Victory?’ (2007) 22 Australian Sex Workers and Refugee Status in Australia’ (2007) 31 Tax Forum 3–17 Melbourne University Law Review 938–966 Jogarajan, S, Wong, J and Andersen, B, ‘Australian Witting, C, ‘Tort Law, Policy and the High Court of Property Trusts and Stapled Securities: Important Australia’ (2007) 31 Melbourne University Law Review Amendments Introduced’ (2007) 39 Weekly Tax Bulletin 569–590 1547–1549 Yang, Y, Studdert, D, Subramanian, S and Mello, M, Kaye, S, ‘International Measures to Protect Oil Platforms, ‘Impact of Liability Pressure on the Supply of Obstetrician- Pipelines, and Submarine Cables from Attack’ (2007) 31 Gynecologists’ (2007) 36 Journal of Empirical Legal Studies Tulane Maritime Law Journal 377–423 S47–S78 Lesh, M, ‘The Public Committee Against Torture in Israel v The Government of Israel: The Israeli High Court of Justice Other Journal Contributions Targeted Killing Decision’ (2007) 8 The Melbourne Journal Bell, M, ‘Book Review: Construction Claims (2nd ed)’ of International Law 373–397 (2007) 81 Law Institute Journal 82 Luntz, H, ‘Book Review: Third Party Liability in Tort by Bell, M, ‘Book Review: Keating on Construction Claire McIvor’ (2007) 15 Torts Law Journal 107–110 Contracts (8th ed)’ (2007) 114 Australian Construction Law Nicholson, P and Nguyen, Q, ‘Vietnamese Law: A Newsletter 58–59 Guide to Sources and Commentary’ (2007) 2 Journal of Bell, M, ‘ICP at Singapore 2007: EPC to PPP in the Lion Comparative Law 219–257 City’ (2007) 2 Construction Law International 30–31

Published Research 75 Published Research

Ramsay ,I and Lew, N, ‘Corporate Law Reform and Dent, C, Patent Policy in Early Modern England: Jobs, Delisting in Australia’ (2007) 2 Virginia Law & Business Trade and Regulation, Report No 06/07, Intellectual Review 265–306 Property Institute of Australia, University of Melbourne, Richardson, M, ‘Book Review: Freedom of Speech’ Melbourne (2007) (2007) 12 Media and Arts Law Review 551–552 Dent, C, To See Patents as Devices of Uncertain (but Skene, L, ‘Undertaking Research in Other Countries: Contingent) Quality: A Foucaultian Perspective, Report No Author’s Reply’ (2007) 4 PLoS Medicine 956–957 05/07, Intellectual Property Institute of Australia, University of Melbourne, Melbourne (2007) Steele, S, ‘Career Choices of Graduates from the University of Melbourne Law School and Regulation of Dent, C and Weatherall, K, Lawyers’ Decisions in Legal Qualifications: Drivers for Career Change and Choice’ Australian Patent Dispute Settlements: An Empirical (2007) 57 Osaka University Law Review 473–515 Perspective, Report No 02/07, Intellectual Property Institute of Australia, University of Melbourne, Melbourne Steele, S, ‘Adoption in Japan: Comparing Policies for (2007) Children in Need’ (2007) 19 Child and Family Law Quarterly 404–407 Fenwick, C, Howe, J, Marshall, S and Landau, I, Labour and Labour-Related Law in Micro and Small Enterprises: Stewart, M and Walker, K, ‘17th Congress of the Innovative Regulatory Approaches, Report No 81 for International Academy of Comparative Law: Tax Law International Labour Office Small Enterprise Programme Session: Australia – National Report’ (2007) 15 Michigan (SEED), International Labour Office, Geneva, Switzerland State Journal of International Law 193–245 (2007) Tham, J, ‘A Risk-Based Analysis of Australia’s Fenwick, C, Kalaula, E and Landau, I, Labour Law: A Counterterrorism Financing Regime’ (2007) 34 Social Southern African Perspective, International Institute for Justice: A Journal of Crime, Conflict and World Order Labour Studies, Geneva, Switzerland (2007) 138–152 Fenwick, C and Sheehan, K, Share-Based Remuneration Voon, T, ‘A New Approach to Audiovisual Products in and Termination Payments to Company Directors: What the WTO: Rebalancing GATT and GATS’ (2007) 14 UCLA are the Rules?, Centre for Corporate Law and Securities Entertainment Law Review 1–32 Regulation and Centre for Employment and Labour Voon, T, ‘Book Review: The WTO Anti-Dumping Relations Law, University of Melbourne, Melbourne (2007) Agreement: A Commentary’ (2007) 56 International and Jones, M, Marshall, S, Mitchell, R and Ramsay, I, Comparative Law Quarterly 463–465 Company Directors’ Views Regarding Stakeholders, Centre Vranken, M, ‘Towards a Hong Kong Law of Tort?’ (2007) for Corporate Law and Securities Regulation, University of 13 Revue Juridique Polynesienne 229–233 Melbourne, Melbourne (2007) Landau, I, Mitchell, R, O’Connell, A and Ramsay, I, An Reports / Working Papers Overview of Existing Data on Employee Share Ownership Anderson, K, Marshall, S and Ramsay, I, Do Australian in Australia, Centre for Corporate Law and Securities Institutional Investors Aim to Influence the Human Regulation, University of Melbourne, Melbourne (2007) Resource Practices of Investee Companies?, Centre for Landau, I, Mitchell, R, O’Connell, A and Ramsay, I, Corporate Law and Securities Regulation, University of Employee Share Ownership: A Review of the Literature, Melbourne, Melbourne (2007) Centre for Corporate Law and Securities Regulation, Christie, A, Cultural Institutions, Digitisation and Copyright University of Melbourne, Melbourne (2007) , Intellectual Property Institute of Australia, Reform Landau, I and Ramsay, I, Employee Share Ownership University of Melbourne, Melbourne (2007) Plans in Australia: The Corporate Law Framework, Centre Christie, A and Rotstein, F, Duration of Patent Protection: for Corporate Law and Securities Regulation, University of Does One Size Fit All?, Report No 04/07, Intellectual Melbourne, Melbourne (2007) Property Institute of Australia, University of Melbourne, O’Connell, A, Employee Share Ownership Plans in Melbourne (2007) Australia: The Taxation Law Framework, Centre for Dent, C, Patent Opposition and the Constitution: Before or Corporate Law and Securities Regulation, University of After?, Report No 01/07, Intellectual Property Institute of Melbourne, Melbourne (2007) Australia, University of Melbourne, Melbourne (2007)

76 Melbourne Law School Research Report 2007 Published Research

Sheehan, K and Fenwick, C, Seven: The Corporations Act, Corporate Governance, and Termination Payments to Senior Employees, Centre for Corporate Law and Securities Regulation and the Centre for Employment and Labour Relations Law, University of Melbourne, Melbourne (2007) 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, University of Melbourne, Melbourne (2007)

Reference Works Evans, C and Rogan, T, Australia: At-a-glance, Encyclopedia of World Constitutions (2007) Facts On File, United States

Published Research 77 78 Melbourne Law School Research Report 2007 Journals, Magazines and Newsletters

79 Faculty Edited Journals, Magazines and Newsletters

Refereed Journals Media & Arts Law Review The Australian Journal of Asian Law The Media & Arts Law Review (MALR) is the only Australian-based refereed journal in the fields of media and The is a Australian Journal of Asian Law (Asian Law) arts law. The Review is published quarterly and examines forum of debate for scholars and professionals concerned areas of media and arts law, including: Communications, with the laws and legal cultures of Asia. It aims for Contempt, Copyright, Cultural Heritage, Defamation, recognition as a leading medium for legal ideas in a region Digitisation, Entertainment, Free Speech, Intellectual characterised by rapid growth and social change. Property, Journalism, Privacy and the Public Interest. Asian Law publishes multi-disciplinary, historical and The Review has a distinguished Editorial Board and contemporary research and fieldwork in English, in the publishes independently refereed articles, from Australian original language or in translation. In the Law School, it and international authors, as well as conference reports is edited by Professor Tim Lindsey, Director of the Asian and book reviews. It also includes regular update reports Law Centre and Dr Amanda Whiting, Associate Director about media and arts law developments from a team (Malaysia). of International Contributing Editors. The updates offer All contributions are peer-reviewed by two referees. a snapshot of matters such as case law, legislation, law The journal’s advisory board includes leading Asian law reform, international conventions, and changes in industry scholars in a range of disciplines from Asia, Australia, self-regulation. Reports include the US, Canada, the UK, Europe and America. Asian Law publishes one special South Africa, Korea, Singapore, the European Union, thematic edition every year, the most recent being devoted New Zealand and Australia. Associate Professor Andrew to Islamic law (syariah). Kenyon edits the Review, and its publisher is LexisNexis. Email: [email protected]. Content from 2006 onward is available internationally in digital full text, from its publisher LexisNexis, as well as Company and Securities Law Journal in paper form. Earlier content is available on the MALR Company and Securities Law Journal, whose editor is website. Professor Geof Stapledon and general editor is Professor Robert Baxt (Professorial Associate of the University Suitable student contributions are welcome, and the of Melbourne and a Partner at Freehills), commenced Editor is happy to discuss possible contributions or other publication by the Law Book Company in 1983. Published assistance with the Review. eight times a year, it is the leading company law journal Website: http://www.law.unimelb.edu.au/malr. in Australasia. Professor Ian Ramsay is a member of the Editorial Board of the Journal. Each issue of the Journal typically contains 2 or 3 articles, together with several casenotes and short ‘comments’ in specialist sections (including company law, directors’ duties and corporate governance, takeovers and public securities, corporate insolvency, corporate finance, securities industry and managed investments, accounting, current developments—legal and administrative, and overseas notes for six jurisdictions). Students are encouraged to submit casenotes and comments for the specialist sections. Article-length pieces from students will also be published if they are of particularly high quality.

80 Melbourne Law School Research Report 2007 Faculty Edited Journals, Magazines 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 awareness comprising students of the Law School at the University of of, and interest in, international law across the wider Melbourne. community. This climate has enhanced the opportunity for The Review publishes articles on all areas of law, with an MJIL to contribute to debate and discussion on a wide range emphasis on Australian domestic law, international law of legal issues. MJIL publishes articles on a broad range of and comparative law. It also publishes case notes, book international law topics. The most recent edition includes reviews, review essays and research notes. The Review’s articles and commentaries on issues of the privatisation of Critique and Comment section features shorter comment- human rights in international law, international labour law, style pieces, along with full-length articles that employ international criminal law, international intellectual property explicitly theoretical approaches to the law. law, and the interaction between trade and competition The Review also publishes the Australian Guide to Legal before the World Trade Organization. Citation (AGLC), which seeks to provide Australia with Editions are distributed to a wide range of readers a uniform system of legal citation. The AGLC outlines and organisations, including commercial enterprises, established citation practices and indicates preferred international organisations, law libraries and law students. approaches where no particular approach has been widely MJIL is distributed both online and in hardcopy, with a accepted. The AGLC has been adopted by a number of readership spanning locations as diverse as Hong Kong, Australia’s leading law journals and is prescribed in some the United States, Sri Lanka, Brazil and South Africa. Australian law schools as the house style guide. The first Articles, case notes, commentaries, practice notes, book edition of the AGLC was published in 1998, a second reviews and summaries of recent legal developments are edition was published in early 2002 and, due to popular all encouraged by the Editors. demand, the AGLC was reprinted in 2003 and 2004. Editors of the MJIL 2007 editions are Bronwyn Reddan, Any enquiries regarding the 2007 editions of the Review or Natasha Sung and Rob Walker. the AGLC should be directed to: Website: http://mjil.law.unimelb.edu.au. Katherine Cooke, Richard Hewett and Sze-Beng Tang (Editors) Melbourne Legal Studies Website: http://mulr.law.unimelb.edu.au. Melbourne Legal Studies is a digital journal distributed through the United States based Legal Scholarship Network (LSN). The journal publishes research by Melbourne Law School academics, including working 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, Magazines and Newsletters 81 Faculty Edited Journals, Magazines and Newsletters

Public Law Review Magazines The quarterly journal Public Law Review is edited by Right Now – Human Rights Law in Australia Professor Cheryl Saunders of the University of Melbourne and Professor Michael Taggart of the University of Right Now aims to promote and strengthen human rights Auckland New Zealand. Associate editors are Fiona law discourse in Australia. By taking an innovative and Wheeler from the Australian National University and Janet creative approach to the communication of legal ideas and issues, will appeal to a wide audience and Maclean from the University of Auckland. The Review is Right Now a refereed journal, with an international advisory board. stimulate active and inclusive discussion of human rights It is produced under the auspices of the Centre for in the broader, non-legal community. Publishing articles Comparative Constitutional Studies (CCCS), and published by persons of all different backgrounds and experiences, by Thompson, Australia. A unique feature of the Review is Right Now offers Melbourne Law School students unique its comprehensive coverage of public law developments opportunities to be involved in editing a publication and to in all Australian and New Zealand jurisdictions. An have their research published in a refereed publication. undergraduate law student is employed each year at CCCS Right Now magazine can be downloaded from to assist with the Review, including the compilation of www.rightnow.org.au. recent developments. Email: [email protected]. Newsletters Corporate Law Bulletin Torts Law Journal The Centre for Corporate Law and Securities Regulation Professor Harold Luntz is the General Editor of the (CCLSR) publishes, in association with the publisher Torts Law Journal, which is published by LexisNexis LAWLEX, the monthly Corporate Law Bulletin. The editor Butterworths. The Journal commenced publication in is Professor Ian Ramsay. The Bulletin is distributed by 1993, and three issues are published each year. The email, and outlines recent Australian and international Journal includes casenotes, articles, comments on corporate law and corporate governance developments, legislation and law reform proposals, and book reviews including statutory amendments, court judgements, and on topics related to torts and alternative compensation new Policy Statements made by the Australian Securities schemes. The Journal aims to be of interest to both and Investments Commission. Some previous issues are academics and practitioners; students may also find it published on the website of the Centre for Corporate Law useful. Contributions of sufficient scholarly quality from and Securities Regulation: students are welcomed and have been published in the past. Website: http://cclsr.law.unimelb.edu.au.

82 Melbourne Law School Research Report 2007 Journal Affiliations

83 Journal Affiliations

Journal Member Publisher Details Editorial Position

Across the Board Ian Ramsay CCH Australia Ltd, Sydney, Australia Member of the Editorial Board

Art, Antiquity and Law Andrew Kenyon Institute of Art and Law, London, United Kingdom Assistant Editor, Aboriginal Culture and Indigenous Peoples

Australasian Journal of Philosophy Natalie Stoljar Oxford University Press, Oxford, United Kingdom Member of Editorial Board

Australasian Parliamentary Review Cheryl Saunders Australasian Study of Parliament Group, Sydney, Australia Member of Editorial Board

The Australian Accounting Review Ian Ramsay The Australian Society of Certified Practising Member of Editorial Board Accountants, Melbourne, Australia

Australian Corporations & Securities Law Reporter Ian Ramsay CCH Australia Ltd, Sydney, Australia Consultant Editor

Australian and New Zealand Journal of Law and Ian Ramsay Education Member of Editorial Board The Australian and New Zealand Education Law Association, Brisbane, Australia

Australian Feminist Law Journal Jenny Morgan Australian Feminist Law Foundation, Melbourne, Australia Member of the Advisory Board

Australian Feminist Studies Ann Genovese Research Centre for Womens’ Studies, Member of the Editorial Board University of Adelaide, Australia

Australian International Law Journal Stuart Kaye International Law Association, Australian Branch Member of the Advisory Board

Australian Journal of Family Law Belinda Fehlberg Butterworths, Sydney, Australia Member of Editorial Board

Australian Journal of Labour Law Colin Fenwick LexisNexis Butterworths, Sydney, Australia Senior Associate Editor Anna Chapman, Breen Creighton, Editorial Committee Members

Australian Yearbook of International Law Dianne Otto, Kristen Walker Centre for International and Public Law, Members of Editorial Board Australian National University, Canberra, Australia

84 Melbourne Law School Research Report 2007 Journal Affiliations

Journal Member Publisher Details Editorial Position

The Australian Journal of Asian Law Tim Lindsey, Amanda Whiting Federation Press, Sydney, Australia Editors Sarah Biddulph, Sean Cooney, Cheryl Saunders Members of Advisory Committee

Canadian Journal of Women and the Law Jenny Morgan University of Toronto Press, Toronto, Canada Australian Correspondent

Company and Securities Law Journal Geof Stapledon LBC Information Services, Sydney, Australia Editor, Directors’ Duties and Corporate Governance Section Editor Paul Ali Corporate Finance Section Editor Ann O’Connell Securities Industry and Managed Investments Section Editor Ian Ramsay Member of the Editorial Board

Construction Law International Matthew Bell International Bar Association, London, United Kingdom Co-Editor Doug Jones AM Member of Editorial Board

Corporate Law Bulletin Ian Ramsay LAWLEX, Melbourne, Australia Editor

Corporate Ownership and Control Geof Stapledon Ukrainian Academy of Banking, Sumy, Ukraine Member of the Editorial Board

Deakin Law Review Peter Rush , Melbourne, Australia Member of the Editorial Board

Doing Business in Asia Tim Lindsey CCH, Singapore Contributing Editor and Member of the Advisory Board

Employment Law in Asia Tim Lindsey CCH, Singapore Member of the Editorial Advisory Board

Feminist Review Ann Genovese Palgrave Macmillan, United Kingdom Australian Correspondent

Fibreculture Journal Andrew Kenyon Fibreculture Publications, Sydney, Australia Member of the Editorial Board

Global Change, Peace and Security Tim McCormack The Institute for Peace Research, La Trobe University, Member of the Editorial Committee Melbourne, Australia

Journal Affiliations 85 Journal Affiliations

Journal Member Publisher Details Editorial Position

Governance Geof Stapledon Governance Publishing and Information Services Ltd, Asia Pacific Consulting Editor and Member of Editorial Board Somerset, United Kingdom

Griffith Law Review Sir , Peter Rush Griffith Law Review Association, Brisbane, Australia Members of the Editorial Board

I.CON Cheryl Saunders Oxford University Press, Oxford, Member of the Editorial Board and Symposium Joint Editor United Kingdom and New Zealand Simon Evans Developments Correspondent, Australia

International Construction Law Review Doug Jones AM Informa, London, United Kingdom Co-Editor in Chief

International Criminal Law Review Tim McCormack Brill Publishers, Leiden, The Netherlands Member of Editorial Board

International Journal of Comparative Labour Colin Fenwick Law and Industrial Relations Member of the Editorial Board Kluwer Law International, The Hague, The Netherlands

International Journal of Information Policy and Law Andrew Christie Inderscience, Geneva, Switzerland Member of the Editorial and Advisory Board

International Securities Regulation: Pacific Rim Ian Ramsay Oceana Publications, New York, United States of America Consultant Editor

International Union Rights Colin Fenwick International Centre for Trade Union Rights, Member of the Editorial Board London, United Kingdom

Intellectual Property Forum Sam Ricketson Intellectual Property Society of Australia and Member of the Editorial Board New Zealand, Perth, Australia

Journal of Australasian Tax Teachers Association Miranda Stewart Australasian Tax Teachers Association, Internet Member of the Editorial Board

Journal of Conflict and Security Law Tim McCormack Oxford University Press, Oxford, United Kingdom Member of the Editorial Board

Journal of Corporate Law Studies Geof Stapledon Hart Publishing, London, United Kingdom Member of the Editorial Board

Journal of Medical Ethics Loane Skene BMJ Publishing Group, London, United Kingdom Member of the Editorial Board

86 Melbourne Law School Research Report 2007 Journal Affiliations

Journal Member Publisher Details Editorial Position

Jurnal Hukum Humaniter Tim McCormack (Journal of Humanitarian Law) Honorary Editor Centre for the Study of International Humanitarian Law Trisakti University Law School, Jakarta

Law and Critique Peter Rush Springer, Dordrecht, The Netherlands Member of the Editorial Board

Law and Society Review Christine Parker Blackwell Publishing, Denver, United States of America Member of the Editorial Advisory Board

Law in Context Miranda Stewart Federation Press, Sydney, Australia Guest Editor

Macquarie Journal of Business Law Ian Ramsay , New South Wales, Australia Member of the Editorial Board

Media and Arts Law Review Andrew Kenyon LexisNexis, Sydney, Australia Editor Megan Richardson, Sam Ricketson Members of Editorial Board

Melbourne Journal of International Law David Brennan, Martin Davies, Alison Duxbury The University of Melbourne, Melbourne Australia Colin Fenwick, Richard Garnett, Geoffrey Lindell, Student members of the Journal are responsible Tim McCormack, Ian Malkin, Anne Orford, for all editorial work Bruce Oswald, Dianne Otto, Sundhya Pahuja, Jacqueline Peel, Kristen Walker Members of the Advisory Board

Melbourne Legal Studies Andrew Kenyon Social Sciences Research Network, Editor United States of America, Internet

Melbourne University Law Review David Brennan, Jenny Morgan, Ian Malkin The University of Melbourne, Melbourne, Australia Faculty Advisors Student members of the Journal are responsible for all editorial work

Ocean Development and International Law Stuart Kaye Taylor and Francis Ltd, London, United Kingdom Member of the Editorial Board

Publius Cheryl Saunders Centre for Study of Federalism, Pennyslvania, Member of the Advisory Council United States of America

Regulatory Governance Christine Parker Blackwells, Melbourne, Australia Member of the Editorial Advisory Board

Journal Affiliations 87 Journal Affiliations

Journal Member Publisher Details Editorial Position

Revenue Law Journal Michael Kobetsky Bond University, Gold Coast, Australia Member of the Advisory Board

Review of Constitutional Studies Cheryl Saunders University of Alberta, Edmonton, Canada Member of the International Advisory Board

Revista Catalana de Dret Public Cheryl Saunders Institut d’Estudis Autonòmics, Barcelona, Spain Member of Scientific Council

Singapore Academy of Law Journal Michael Crommelin, Ian Ramsay Singapore Academy of Law, Singapore Members of the International Referees

The New Zealand Armed Forces Law Review Tim McCormack Armed Forces Law Association of New Zealand, Consulting Editor Christchurch, New Zealand

The Third World and International Law Dianne Otto Kluwer Law International, The Hague, The Netherlands Member of the International Advisory Board

Third World Legal Studies Dianne Otto International Third World Legal Studies Association and Member of the Advisory Board the Valparaiso University School of Law, Indiana, USA

Torts Law Journal Harold Luntz LexisNexis Butterworths, Sydney, Australia Editor Hayden Opie Member of the Editorial Board

Tort Law Review Michael Tilbury LBC Information Services, Sydney, Australia Member of the Editorial Board

Trade Practices Law Journal Tim Lindsey Lawbook Company, Pyrmont, Australia Editor, Report from Asia

Yearbook of International Humanitarian Law Tim McCormack TMC Asser Instituut Press, The Hague, The Netherlands Editor in Chief

88 Melbourne Law School Research Report 2007 Faculty Research Workshop Series

89 Faculty Research Workshop Series

26 February 2007 Dr John Howe ‘Using Public Procurement to Regulate Labour Standards: A Case Study of the Victorian Government Schools Contract Cleaning Program’

5 March 2007 Professor Tim McCormack ‘How Not to Try a Former Head of State: Lessons from the Milosevic Trial’

12 March 2007 Professor Les Moran (Birkbeck University, London) ‘The Cultural Lives of the Judiciary’

19 March 2007 Professor Adrienne Stone ‘Judicial Review without Rights’

26 March 2007 Dr Jacqueline Peel ‘Ecologically Sustainable Development: More than Mere Lip-Service’

2 April 2007 Associate Professor Carolyn Evans ‘Religious Hate Speech Directed at Women’

16 April 2007 Professor Andrew Christie ‘Multi-disciplinary Research: Aspirations and Actualities’

23 April 2007 John Waugh ‘Choosing the Dean: A Quasi-Democratic History’

30 April 2007 Associate Professor Megan Richardson ‘Art and Artifice in Unstaged Photography: Naomi meets DiCorcia’

7 May 2007 Dr Ann Genovese ‘Taking Liberties: Australia in the 60s’

14 May 2007 Bruce Oswald ‘The Law of Military Occupation: Imagining a Legal Paradise’

21 May 2007 Joo-Cheong Tham ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’

23 July 2007 Dr David Brennan ‘Replevin and the Paradox of English Chattel Property’

30 July 2007 Liz Cham (Senior Research Fellow in Philanthropy, University of Melbourne) and John Emerson (Partner, Freehills) ‘Charitable Law – Problems and Progress’

90 Melbourne Law School Research Report 2007 Faculty Research Workshop Series

6 August 2007 Associate Professor Diana Sancho Villa (Facultad Ciencias Uridacas y Sociales, Universidad Rey Juan Carlos) ‘European Transfers of Personal Data to Australia: An Introductory Approach to the Role to be Played by Corporate Binding Rules and Standard Contractual Clauses’

13 August 2007 Associate Professor Cally Jordan ‘Revisiting Legal Origins: The Case of Corporate Governance’

20 August 2007 Associate Professor Di Otto ‘Emergency Law: Cautionary Tale about Responding to International Terror and Peacekeeping Sex’

27 August 2007 Dr Matthew Harding ‘Trusts for Religious Purposes: Three Approaches to the Question of Public Benefit’

3 September 2007 Associate Professor Maureen Tehan ‘Indigenous/Settler Land Relations and the Property Paradox’

10 September 2007 Associate Professor Pamela Hanrahan ‘Improving the Process of Regulatory Change in the Financial Sector – and what Butterflies, Bubble Skirts and Medieval Monks might have to do with it’

1 October 2007 Associate Professor Carolyn Evans and Associate Professor Andrew Kenyon ‘RQF Update and ARC Grant Proposals’

8 October 2007 Mr Donal Nolan (University of Oxford) ‘The Reach of Breach: Breach of Duty as a Control Mechanism in Negligence’

15 October 2007 Professor David Studdert ‘Deconstructing Negligence: Do Medical Torts Hit the Mark?’

22 October 2007 Dr Helen Durham ‘Women as Warriors – Men as Carers: Some Gender Reflections on the Law of War’

Faculty Research Workshop Series 91 92 Melbourne Law School Research Report 2007 International Research Visitors Scheme Student Research Prizes

93 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 Recipient: Dr Gregor Noll, Associate Professor of International Law, Faculty of Law, University of Lund, Sweden Period of Visit: January 2007 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.

IRVS Recipient: Professor Martha Bailey, Professor, Faculty of Law, Queen’s University, Canada Period of Visit: 11 – 28 February 2007 Project: Accommodation of Religious Diversity in Family Law Regimes

This visit enabled Professor Martha Bailey to work with Professor Belinda Fehlberg and Dr Amanda Whiting.

IRVS Recipient: Professor BS Chimni, Professor, School of International Law, Jawaharlal Nehru University, India

Period of Visit: 5 – 8 June 2007 Project: Presentation at the 2007 Sir Kenneth Bailey Memorial Lecture

This visit enabled Professor BS Chimni to work with Professor Anne Orford.

94 Melbourne Law School Research Report 2007 Student Research Prizes

Student Published Research Prize 2007 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 Lachlan Harrison-Smith ‘Changing Sex on the Birth Register – Leave Room for ‘I’!’ Regulation and Repression: of Transsexual Identities in Theory and Law’ (2007) 10 (2) Flinders Journal of Law Reform 211-239

Postgraduate Caroline Henckels ‘The Ostensible Flexibilities in TRIPS: Can Essential Pharmaceuticals be Excluded from Patentability in Public Health Crises?’ (2007) 32 (2) Monash University Law Review 335-356

Harold Luntz Graduate Research Thesis Prize 2007 Winner The prize is awarded annually to the Melbourne Law School graduate research student judged to have presented the best thesis in the previous year provided that the nominee meets an overall level of excellence required for the award. The Inaugural Harold Luntz Graduate Research Thesis Prize is awarded to:

Simon Butt for his thesis ‘Judicial Review in Indonesia: Between Civil Law and Accountability? A Study of Constitutional Court Decisions 2003-2005’.

Student Research Prizes 95 96 Melbourne Law School Research Report 2007 Academic Staff

97 Academic Staff

Head of Department, Dean and Zelman Australian Red Cross Professor of Cowen Professor of Law International 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 Australia, Barrister and Solicitor Victoria and Papua New Davies Collison Cave Professor of Guinea, Legal Practitioner Intellectual Property Andrew Frederick Christie, BSc Melb. LLB Melb. Professors LLM Lond. PhD Cantab. Michael Bryan, MA Oxf. BCL Oxf. PhD Lond. Barrister and Solicitor of the Supreme Court of Victoria Camille Cameron, BA Saint Mary’s LLB New Br. and Solicitor of the Supreme Court of England and Wales, LLM Cantab. Registered Trade Marks Attorney Australia Belinda Louise Fehlberg, BA Melb. LLB Melb. DPhil Oxf. Harold Ford Professor of Commercial Law Barrister and Solicitor Victoria and the High Court of Australia Ian Malcolm Ramsay, BA Macq. LLB Macq. LLM Harv. Solicitor of the Supreme Court New South Wales and the Richard Garnett, BA NSW LLB NSW LLM Harv. High Court of Australia and Member of the New York Bar Solicitor New South Wales, Barrister and Solicitor Victoria, Solicitor of the Supreme Court of England and Wales Associate Professors and Readers Dan Hunter, LLB Monash BSc Monash LLM Melb. Michael Anthony Kriton Lambiris, LLB Lond. PhD Cantab. PhD Rhodes Stuart Kaye, BA Syd. LLB Syd. LLM Syd. JSD Dal. FRGS Martin Nico Alphons Vranken, LicLaw Leuven Barrister of the Supreme Court of New South Wales, PhD Leuven LLM Yale Supreme Court of Queensland, Supreme Court of Tasmania and the High Court of Australia Associate Professors Ian Rael Malkin, BA Manit. LLB Manit. LLM Lond. Paul Ali, LLB Auck. MJur Auck. SJD Syd. Barrister and Solicitor of the Queen’s Bench of Manitoba Solicitor of the Supreme Court of New South Wales, Barrister and Solicitor of the High Court of New Zealand Jennifer Jane Morgan, BA Syd. LLB NSW LLM Yale Barrister and Solicitor Victoria David Brennan, BComm Melb. LLB Melb. PhD Melb. Staniforth Ricketson, BA Melb. LLB Melb. LLM Lond. Sean Thomas Cooney, BA Melb. LLB Melb. LLM Melb. LLD Lond. FASSA LLM Col. JSD Col. Barrister and Solicitor of the Supreme Court Victoria and Barrister and Solicitor Victoria and the High Court of Solicitor of the Supreme Court New South Wales Australia Andrew John Robertson, LLB QIT LLM QUT PhD ANU Manfred Paul Ellinghaus, LLB Melb. LLM Yale Solicitor of the Supreme Court of Queensland and the Barrister and Solicitor of the Supreme Court of Victoria Supreme Court of England and Wales Carolyn Evans, BA Melb. LLB Melb. DPhil Oxf. Cheryl Anne Saunders AO, BA Melb. LLB Melb.PhD Melb. Barrister and Solicitor of the Supreme Court of Victoria Barrister Queensland (Personal Chair in Faculty of Law) Simon Charles Evans, BSc Syd. LLB Syd. PhD Cantab. Loane Skene, LLB Melb. LLM Monash Barrister and Solicitor of the High Court of Australia, Barrister and Solicitor Victoria, Barrister and Solicitor of the Solicitor New South Wales High Court of Australia Jeremy Gans, LLB ANU BSc ANU MA Tor. PhD NSW Geofrey Peter Stapledon, BEcon Adel. LLB Adel. Beth Gaze, BSc Monash LLB Monash LLM Berkeley DPhil Oxf. Barrister and Solicitor of the Supreme Court of Victoria and Solicitor of the Supreme Court of and New the High Court of Australia South Wales Lee Godden, GradDipEd Melb. BLegS Macqu. BA Melb. Adrienne Stone, BA NSW LLB NSW LLM Col. JSD Col. MA Melb. PhD Griff. Barrister and Solicitor Australian Capital Territory, Solicitor Queensland

98 Melbourne Law School Research Report 2007 Academic Staff

Pamela Fay Hanrahan, BA Melb. LLB Melb. LLM Case Senior Lecturers Western Reserve University SJD Melb. Jenny Beard, BA ANU LLB ANU LLM Pub Intl L Lond Sch Barrister and Solicitor of the Supreme Court of Victoria of Eco & Pol Sc. PhD Melb. Cally Jordan, LLB McGill BCL McGill DEA Paris I Caron Beaton-Wells, LLB Melb. LLM Melb. PhD Melb. Andrew Thomas Kenyon, LLB Melb. LLM Lond. Barrister and Solicitor of the Supreme Court of Victoria PhD Melb. Sarah Biddulph, BA Syd. LLB Syd. PhD Melb. Barrister and Solicitor of the Supreme Court of Victoria Barrister and Solicitor of the High Court of Australia, Shaun McVeigh, LLB Exe. Solicitor New South Wales Pip Nicholson, BA Melb. LLB Melb. LLM (Public Policy) Gary Cazalet, BA Monash LLB Monash ANU PhD Melb. Anna-Louise Margaret Chapman, BComm Melb. Ann Margaret O’Connell, BA Melb. LLB Melb. LLM Melb. LLB Melb. LLM Melb. Barrister and Solicitor Victoria Barrister and Solicitor Victoria Dianne Lynette Otto, BA Adel. LLB Melb. LLM Melb. Alison Duxbury, BA Melb. LLB Melb. LLM Cantab. LLM Col. JSD Col. Barrister and Solicitor of the Supreme Court of Victoria Sundhya Pahuja, BA Melb. LLB Melb. LLM Br.Col. Colin Fenwick, BA Melb. LLB Melb. LLM Melb. Barrister and Solicitor of the Supreme Court of Victoria Virginia Barrister and Solicitor Victoria Andrew James Palmer, BA Well. LLB Monash BCL Oxf. Michelle Foster, BComm UNSW LLB UNSW Barrister of the Supreme Court of Victoria LLM Michigan SJD Michigan Jacqueline Peel, BSc Qld. LLB Qld. LLM NYU PhD Melb. Andrew Godwin, BA Melb. LLB Melb. LLM Melb. Solicitor of the Supreme Court Queensland Linda Haller, LLB Monash LLM Qld. PhD Qld. Helen Rhoades, LLB Melb. LLM Melb. John Howe, BA Monash LLB Monash LLM Temple Barrister and Solicitor Victoria PhD Melb. Megan Lloyd Richardson, BA Well. LLB Well. LLM Yale Michael Kobetsky, BEcon USyd. LLB ANU PhD Deakin LLM Brussels Barrister and Solicitor of the High Court of New Zealand Jürgen Kurtz, BA Melb. LLB Melb. LLM Melb. Peter Rush, BA NSW LLB NSW MPhil Cantab. PhD Edin. Wendy Larcombe, BA Melb. BLitt Melb. LLB Melb. PhD Melb. Miranda Stewart, BSc Syd. LLB Syd. Grad Dip ANU LLM NYU Janice Luck, LLB Tas. LLM Lond. Barrister and Solicitor Victoria Barrister and Solicitor Victoria Maureen Frances Tehan, LLB Monash BA Melb. Andrew Mitchell, LLB Melb. BComm Melb. LLM Harv. LLM Melb. Grad Dip Intl L Melb. PhD Cantab. Barrister and Solicitor Victoria, South Australia, Western Barrister and Solicitor of the Supreme Court of Victoria and Australia and the High Court of Australia, Legal Practitioner the High Court of Australia Northern Territory of Australia Hayden David Opie, BComm Melb. LLB Melb. LLM Tor. Kristen Louise Walker, BSc Melb. LLB Melb. LLM Melb. Barrister and Solicitor Victoria LLM Col. Bruce Oswald CSC, BBus RMIT LLB ANU LLM Lond. Barrister and Solicitor Victoria MA Kent Christian Witting, BEc Monash LLB Monash SJD Melb. Barrister New South Wales Barrister and Solicitor of the High Court of Australia Glenn Anthony Patmore, BA Monash LLB Monash David Alan Russell Wood, BA ANU LLB Melb. MA Melb. LLM Queens PhD Melb. Barrister and Solicitor of the Supreme Court of Victoria Joo-Cheong Tham, LLB Melb. LLM Melb. PhD Melb. John Tobin, BA Melb. BComm Melb. LLB Melb. LLM Lond. Barrister and Solicitor of the Supreme Court of Victoria and of the High Court of Australia

Academic Staff 99 Academic Staff

Tania Voon, BSc Melb. LLB Melb. Grad Dip Intl L Melb. ARC Queen Elizabeth II Fellow LLM Harv. PhD Cantab. Natalie Stoljar, BA Syd. LLB Syd. PhD Princeton Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia ARC Professorial Fellow John Charles Waugh, LLB Melb. BComm Melb. Anne Margaret Orford, BA Qld. LLB Qld. LLM Lond. BA Melb. LLM Melb. MPhil Cantab. PhD Adel. Barrister and Solicitor Victoria Solicitor of the Supreme Court of Queensland

Lecturers ARC Research Fellow Matthew Bell, BA Melb. LLB Melb. LLM Melb. Christine Parker, BA Qld. LLB Qld. PhD ANU Barrister and Solicitor Victoria ARC Postdoctoral Fellow Helen Louise Bird, BComm Qld. LLB Qld. Barrister and Solicitor Victoria Ann Genovese, BA Adel. LLB Adel. PhD UTS David Blumenthal, BA Melb. LLB Melb. PhD Melb. Research Fellows Arlen Duke, BComm Melb. LLB Melb. Jason Bosland, BA Melb. LLB Melb. Matthew Harding, BA Melb. LLB Melb. BCL Oxf. Chris Dent, BA Murdoch LLB Murdoch PhD Murdoch DPhil Oxf. Helen Durham, BA Melb. LLB Melb. SJD Melb. Michelle Herring, BComm Monash LLB Monash Barrister and Solicitor of the Supreme Court of Victoria and Barrister and Solicitor of the Supreme Court of Victoria the High Court of Australia Jacqueline Horan, BA Monash LLB Monash Natalie Jamieson LLM Monash. PhD Melb. Ingrid Landau, B Asian Studies ANU LLB ANU Barrister and Solicitor of the High Court of Australia, Barrister and Solicitor of the Supreme Court of Victoria Shelley Marshall, BA Melb. LLB Melb. MSc Development Studies LSC Jessica Howard, BA Melb. LLB Melb. Ruth Quibell Enelia Jansen van Rensburg, BA Uni of Stellenbosch. LLB Uni of Stellenbosch. LLM Uni. of Capetown Fiona Rotstein, BA Melb. LLB Melb. Sunita Jogarajan, BComm Melb. LLB Melb. Noamita Royan, BComm Melb. LLB Melb. Lisa Koralia Sarmas, BA Melb. LLB Melb. LLM Melb. Robin Wright, LLB LaTrobe. MA(Women’s Studies) Barrister and Solicitor of the Supreme Court of Victoria Monash. BMus Melb. Michelle Sharpe, BA Adel. LLB Adel. PhD Melb. Principal Fellows Stacey Steele, BA Qld. MA Monash BL ML Melb. George Beaton, MBBCH, PLD, MBA (Witwatersrand) Michelle Taylor-Sands, BA Monash, LLB Monash Lt Colonel Michael Kelly AM, BA Macq. LLB Macq. Amanda Whiting, BA Melb. DipEd Melb. PhD NSW GradDip Indonesia. LLB Melb. PhD Melb. Sue MacCallum Federation Fellows Robert Mathews OAM, BSc Monash MSc LaTrobe Timothy Charles Lindsey, BA Melb. BLitt Melb. Senior Fellows LLB Melb. PhD Melb. Lt Colonel Paul Muggleton Professor of Asian Law, Barrister and Solicitor Victoria Grania Sheehan David Studdert, BA Melb. LLB Melb. ScD Harv. MPH Harv. Commander Dale Stephens CSM RAN

100 Melbourne Law School Research Report 2007 Academic Staff

Honorary Staff Michael Tilbury, LLB Lond. BCL Oxf. Emeritus Professors Barrister of the Supreme Court of New South Wales and Barrister of the High Court of Australia The Rt Honorable Sir Zelman Cowen, AK GCMG GCVO PC QC MA DCL, Hon. LLD Oxf. Brigadier Ian Westwood, LLB Syd. LLM JAG Army US Harold Ford AM, LLM Melb. SJD Harv. Hon LLD Melb. Douglas Williamson RFD QC FAIM, LLB Melb. QC Victoria, New South Wales, , Colin Howard, BA Melb. LLB Lond. LLM Lond. PhD Adel. Tasmania, Australian Capital Territory and Northern LLD Melb. Territory David John Lanham, LLB Leeds BCL Oxf. Sarah Worthington Barrister-at-Law Lincoln’s Inn External Staff Professorial Fellows Senior Fellows (Graduate Program) Ian Bailey SC Owen Anderson, University of Oklahoma Sandford Delbridge Clark, LLB Adel. PhD Melb. Barrister and Solicitor Victoria and South Australia Carol Andrades, Ryan Carlisle Thomas Breen Creighton, LLB Belf. LLB Melb. PhD Cantab. Christopher Antons, University of Wollongong Martin John Davies, BA Oxf. BCL Oxf. MA Oxf. Trevor Atherton, Atherton Advisory LLM Harv. Trudie Atherton, Atherton Advisory The Honorable Sir AC KBE CB, Melanie Baker, Allens Arthur Robinson LLB Melb. LLM Yale Duncan Baxter, Blake Dawson Waldron Costas Douzinas Andrew Bell SC, New South Wales Bar Tony Duggan, BA Melb. LLB Melb. LLM Tor. David Bennett QC John Farrar, LLB Lond. LLM Lond. LLD Lond. PhD Brist. Judy Bourke, Solicitor Barrister and Solicitor of the High Court of Australia Douglas Branson, University of Pittsburgh The Honorable Justice Paul Finn, BA Qld. LLB Qld. LLM Lond. PhD Cantab. Michael Bridge, University College London John Malcolm Fraser AC CH PC Andrew Broadfoot, Victorian Bar , LLB Melb. LLM Melb. PhD Cantab. Eugénie Buckley, Football Federation Australia Doug Jones AM, BA Qld. LLB Qld. LLM Qld. Ross Buckley, Bond University Geoffrey Lindell, LLB Adel. LLM Adel. David Caudill, Villanova University Barrister and Solicitor South Australia Simon Chesterman, New York University Harold Luntz, BA Witw. LLB Witw. BCL Oxf. LLD Melb. Karin Clark, Allen Arthur Robinson Barrister and Solicitor Victoria Richard Comerford, Passionate Learning Gaetano Tony Pagone QC, BA Monash DipEd Monash Melissa Conley Tyler, Australian Institute of International LLB Monash LLM Cantab. Affairs Peter Sallmann, LLB Melb. MSAJ Washington Philip Crutchfield, Victorian Bar MPhil Cantab. Terence Daintith, University of Western Australia Robin Lorimer Sharwood AM, BA Melb. LLB Melb. LLM Berk. SJD Harv. Rodney De Boos, Davies Collision Cave Barrister and Solicitor Jan Job de Vries Robbé, Dutch Development Bank FMO San-Hyun Song, LLB Seoul LLM Tulane Aldrin De Zilva, Horwath Tax Lawyers The Rt Honourable Sir Ninian Stephen KG AK GCMG Jean Paul Donga, Ernst & Young GCVO KBE John Dorter, Allens Arthur Robinson Davison Douglas, College of William and Mary

Academic Staff 101 Academic Staff

Michael Flynn, Victorian Bar Angela Quintarelli, Freehills James Forrest, Mallesons Stephen Jaques Moira Rayner, Moira Rayner & Associates Peter Fox, Victorian Bar Greg Reinhardt, Australian Institute of Judicial Martin Fry, Allens Arthur Robinson Administration Jonathan Gill, Francis Abourizk Lightowlers Craig Richards, Carlton Football Club Peter Gillies, Pitcher Partners Peter Rozen, Victorian Bar Erica Grundell, Department of Human Services Greta Rusanow, Curve Consulting Peter Hallett, Griffith Hack Des Ryan, Davies Collison Cave Peter Harcourt, Victorian Institute of Sport Fred Schenck, Webb Martin James Hathaway, University of Michigan John Sharkey AM, Deacons Gitte Heij, CARA Consulting Karen Sinclair, Watermark Patent and Trade Mark Attorneys Deborah Hensler, Stanford Law School Shannon Smit, Ernst & Young Graeme Hill, Australian Government Solicitor Allen Snyder, University of San Diego Ray Hind, Davies Collison Cave Ken Spence, Shaddick & Spence Paul Hockridge, William Buck Andrew Stephenson, Clayton Utz William Holder, Consultant Trevor Stevens, Davies Collison Cave Tony Holland, Mallesons Stephen Jaques Andrew Stewart, Flinders University Pierre Legrand, Université Paris Sorbonne John Stonier, Licensing Consultant Katy Le Roy, Centre for Comparative Constitutional Studies David Tadgell, Phillips Ormonde Fitzpatrick John Lowe, Southern Methodist University Michael Taggart, University of Auckland Alan Maclean, Freehills John Tiley, Cambridge University Geoff Mansfield, Griffith Hack Rachel Trindade, Consultant Paul Marcus, College of William and Mary Michael Tuckfield, Clayton Utz John McKenna, Freehills Ian Walden, University of London Alexandra Merrett, Australian Competition and Consumer Commission Robin Warner, Commonwealth Attorney General’s Department Carl Moller, Minter Ellison David Webber, Davies Collison Cave David Morgan, formerly Department of Foreign Affairs and Trade Jane Winn, University of Washington Derek Morgan, University of Queensland Susan Woodward, The William Buckland Foundation Bernard Murphy, Maurice Blackburn Cashman Justice Zak Yacoob, South African Constitutional Court Christina Murray, University of Cape Town Elisabeth Zoller, Université Pathéon-Assas (Paris II) Jim Murray, TT Legal Adrian Zuckerman, Oxford University Tim Neilson, Greenwoods & Freehills Senior Fellows (The Melbourne JD) Stephen Newman, Cornwall Stodart Daniel Clough, Victorian Bar Vivienne O’Connor, Irish Centre for Human Rights Albert Dinelli, High Court of Australia Frank O’Loughlin, Victorian Bar Francois du Bois, University of Capetown Alan Peckham, Freehills Ben Fitzpatrick, Victorian Bar Richard Pentony Paul Halley, Victorian Bar Ed Heerey, Victorian Bar

102 Melbourne Law School Research Report 2007 Academic Staff

Gail Hubble, Victorian Bar Charmaine Lye, Victorian Bar Gregory Lyons, Former Organisation: Victorian Civil and Administrative Tribunal Peter Morrissey, Victorian Bar Richard Niall, Victorian Bar Bill Rimmer, Victorian Bar Michael Rush, Victorian Bar Shane Tyrrell, Victorian Bar Daniel Visser, University of Cape Town Paul Vout, Victorian Bar Andrew White

Academic Staff 103 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 Associate Professor Simon Evans Professor Cheryl Saunders AO (from July 2007)

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 Islamic Law and Society 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

104 Melbourne Law School Research Report 2007 Graduate Research Student Profiles

105 Graduate Research Student Profiles

Yoriko Otomo A parallel reading of key epistemological shifts in International law at the beginning of the 21st century international law using critical legal theory’s bordering continues to be dominated by the language of risk, evident disciplines: psychoanalysis, gender theory and postcolonial particularly in relation to terrorism and trade. My doctoral theory, reveals a fraternity in constant crisis. Following research examines the implications of this for thinking the scientific revolution in the sixteenth century, states about ethical relations between legal subjects. struggled over ensuing centuries to regulate war and trade in the absence of an unconditional guarantor. This led to The risk of terrorism; of nuclear war; the spread of their eventual adoption of equality – a fiction in terms of genetically modified organisms; the risk of human actual power relations but a necessary one for enabling rights abuses; climate change; mass migration, death: mutual recognition of sovereign subjectivity – as the new in the name of risk, we are witness and party to a raft foundation for the social contract. of international treaties and interventions. Discussion of the concept and language of risk has taken place This project undertakes a genealogy of sovereign fantasies primarily within sociology and economics, figuring little by looking at key moments of fraternal crises, focusing in writings on law save in relation to doctrines such on the post-war unconditional surrenders of Japan and as the precautionary principle. In order to think about Germany, and recent jurisprudence on risk by the World contemporary anxieties about the role of international law Trade Organisation. What emerges from this analysis is in addressing risk between sovereign states, I depart from a critical account of international law which articulates previous discursive fields to undertake deconstructive how discourses of risk and rights operate in the fields of readings of risk as it appears in key international law texts trade and occupation law to configure relations between from the sixteenth century until the present day. subjects. The project concludes that if we are to retain politics at the heart of international law there is an urgent need, not only to think the state otherwise, but to articulate an ethics for legal subjects as an alternative to those prescribed by existing critical theories.

106 Melbourne Law School Research Report 2007 Graduate Research Student Profiles

David Tan David was the Director of Sports with the Singapore David Tan enrolled in the PhD program at Melbourne Law Government, from 2004-2005, responsible for developing School in 2006 to investigate the contribution of cultural policies to facilitate the sustainable development of studies to the laws governing the right of publicity. He also competitive and recreational sports in Singapore. From lectured Constitutional Law there in the second semester 2002-2004, he was the Director of Contact Singapore, of 2007. David has been appointed Assistant Professor at overseeing an international network of offices in North NUS Law School (at the National University of Singapore) America, Europe, China, India, Southeast Asia and and will commence teaching there upon the completion of Australia. his PhD thesis. In the area of law, David has been on the editorial boards David holds a from Harvard, and graduated of the Harvard International Law Journal, Harvard Human with first class honours in law from the University of Rights Journal and Melbourne University Law Review. Melbourne as well as with a Bachelor of Commerce Some of his more notable publications are in the areas majoring in economics. In addition, he is an accomplished of cultural studies and the right of publicity, outer space fine art fashion photographer who had staged several environmental law, moral rights in musical compositions, solo exhibitions over the last ten years, and had published fiduciary duties governing the doctor-patient relationship, coffee table books in association with luxury brands Cartier and the impact of statutory business judgment rule on and Versace. David was named Singapore’s Outstanding company directors. Young Person of the Year in 1999. The working title of the thesis is: ‘How Can Cultural Studies Contribute to Right of Publicity Laws Protecting the Commercial Value of the Celebrity Identity?’ The right of publicity is recognised in 28 states in the United States, through a farrago of common law and statutory regimes. The research project focuses on three key elements of a right of publicity claim that has generated much controversy since the Ninth Circuit handed down its decision in White v Samsung in 1992: (i) the most expansive interpretation of ‘indicia of identity’ to include anything could evoke a celebrity in the minds of the audience; (ii) the perfunctory treatment of the issue of the appropriation of the commercial value of the celebrity’s identity; and (iii) the cursory dismissal of First Amendment arguments in one paragraph. Since the contemporary celebrity is very much a cultural and social phenomenon, the thesis argues that an understanding of cultural studies is important for the principled development of right of publicity laws, and investigates how relevant cultural studies perspectives – for example, the writings of Richard Dyer, Graeme Turner, P David Marshall and Stuart Hall – can contribute to right of publicity jurisprudence. Some cross-jurisdictional comparison with UK and Australia experiences will also be engaged.

Graduate Research Student Profiles 107 108 Melbourne Law School Research Report 2007 Graduate Research Degrees Completed in 2007 and In Progress

109 Graduate Research Degrees Completed in 2007

Doctor of Philosophy Rogers, J Fantasies of ‘Female Genital Mutilation’: Flesh, Law and Boas, G Freedom Through Psychoanalysis The Milosevic Trial: Lessons for the Conduct of Complex Supervisor: Peter Rush International Criminal Proceedings Supervisors: Tim McCormack and Carolyn Evans Steiner, K Are ‘Asian Values’ Universal? International Discourses on Butt, S Human Rights Policies Judicial Review in Indonesia: Between Civil Law and Supervisor: Tim Lindsey Accountability? A Study of Constitutional Court Decisions 2003-2005 Supervisor: Tim Lindsey Doctor of Juridical Science Gallen, M A Model Law for Anti-doping in Sport Alcordo, E Supervisors: Hayden Opie and First World Convention and Third World Corruption: The OECD Convention on Bribery in International Commercial Hanlon, F Transactions and Foreign Subsidiary Corporations in the An Analysis of the Office of Attorney General in Australia Philippines and Directions for the Future Supervisors: Pip Nicholson and Michael Tilbury Supervisor: Cheryl Saunders Sherman, T Harper, E The Introduction of the Consolidation Regime into the (Re)constructing a Legal System in East Timor: Challenges Income Tax Assessment Act 1997 (Cth): An Analysis of the to Introducing International Legal Norms and Principles into Effect on the Subsidiary Disposal Decision for a Corporate Post-Conflict States under UN Administration Group Supervisor: Tim Lindsey Supervisors: Geof Stapledon and Cameron Rider

Kordvani, A International Law, Economic Liberalization and the Movement of Natural Persons Supervisor: Anne Orford

Millar, H Standards for Effective Transitional Justice Decision- Making: Lessons from South Africa and East Timor Supervisors: Tim McCormack and Helen Durham

Murphy, A Effective Public Participation in Major Projects Supervisor: Lee Godden and Gillian Triggs

Nielsen, J An Intractable Problem: The Endurance of Settled White Privilege in Mainstream Work Cultures Supervisors: Jenny Morgan and Irene Watson

110 Melbourne Law School Research Report 2007 Graduate Research Degrees in Progress

Doctor of Philosophy Bulto, T The Utility of Civil and Political Rights Protections in Allan, S Enhancing Justicability of Socio-Economic Rights in the The Regulation of Science: Research on Human Embryos, African Human Rights System Cloning and the Law Supervisors: Dianne Otto and Colin Fenwick Supervisors: Loane Skene and Christine Parker Carson, R Allen, D Supervised Contact: A Study of Current Trends and Improving the Effectiveness of Australia’s Anti- Emerging Tensions since the Introduction of the Family Discrimination Laws Law Reform Act 1995 (Cth) Supervisors: Beth Gaze and Jenny Morgan Supervisors: Belinda Fehlberg, Jenny Morgan and Alneyadi, M Grania Sheehan Surrogacy: It’s Legal Boundaries in UAE and Islamic Charwat, N Jurisprudence Contesting Global Governance: A Critical Examination of Supervisors: Tim Lindsey and Michael Bryan Amicus Curiae Briefs in the World Trade Organisation’s Dispute Settlement Body Barnett, K The Aristotlean Principle of Distributive Justice Supervisor: Dianne Otto Supervisors: Michael Bryan and Andrew Robertson Chen, V Evidence of Child Abuse in Non-Jury Criminal Trials Barr, O Supervisors: Andrew Palmer, Ann Genovese and Sovereignty as a Tool of Colonialism: An Examination of the Historical and Jurisprudential Foundations of Augustine Sinnapen Sovereignty Clarke, B Supervisors: Jenny Beard and Maureen Tehan Occupation, Resistance and Jus ad Bellum: When is it Lawful to Forcibly Resist Foreign Occupation of a Becroft, R Sovereign State? The Development of a Standard of Review in World Trade Organisation Disputes Supervisors: Tim McCormack, Michael Kelly and Michael Gillooly Supervisors: Richard Garnett and Andrew Mitchell Coleman, A Bird, H The International Court of Justice and Claims for Self- Conciliatory Enforcement of Australian Company Law: The Determination Operation and Use of Enforceable Undertakings by ASIC, the Corporate Regulator Supervisors: Tim McCormack and Tania Voon Supervisor: Ian Ramsay Colmenares, N International Jurisdiction and Amnesty Bird, J Bioethics and Human Rights: Mapping the Boundaries of Supervisors: Tim Lindsey and Tim McCormack the Human Subject Conidi, B Supervisor: Natalie Stoljar Imposing International Criminal Law and the Individual Victims of Mass Violence: Help or Hindrance? Brophy, E The Integration of Complementary and Alternative Supervisors: Tim McCormack and Helen Durham Medicine into Health Care: Regulating for Consumer D’Souza, A Choice, Autonomy and Responsibility John Locke and the Philosophy of Intellectual Property Supervisors: Christine Parker, Harold Luntz, Vicki Kotsirilos Rights and Marie Pirotta Supervisors: Robyn Eckersley and Andrew Christie

Graduate Research Degrees in Progress 111 Graduate Research Degrees in Progress

Duxbury, A Griffin, L The Participation of States in International Organisations: Development, Agency and Rights Beyond Borders: A Case The Role of Human Rights and Democracy Study of Basotho Domestic Workers in Bloemfontein Supervisors: Tim McCormack and Gerry Simpson Supervisors: Salim Lakha and Jenny Beard

Edgar, D Hammond, E Wildlife ‘Ownership’ and Management in the Northern Judicial Review for Substantive Unfairness: Prospects Territory under Australian Constitution Supervisors: Marcia Langton, Maureen Tehan and Supervisors: Cheryl Saunders and Simon Evans Steve Keen Henderson, I Elkman, S Targeting During Armed Conflict: A Legal Analysis The Philosophical Foundations of Intellectual Property Law Supervisors: Tim McCormack and Andrew Mitchell Supervisors: Michael Bryan and Megan Richardson Howard, J Fenwick, S ‘To Deter and Deny’: International Law and Australia’s Islamic Liberalism and the Rule of Law: Rights and the Interdiction of Asylum Seekers Politics of Transition in post-Suharto Indonesia Supervisor: Tim McCormack Supervisors: Tim Lindsey and Abdullah Saeed Hudson, E Finnin, S Copyright Law and the Cultural Sector: Lessons for How Prosecutors Shape International Criminal Law and Australia from the United States and Canada Justice Supervisors: Andrew Kenyon and Andrew Christie Supervisors: Tim McCormack and Helen Durham Jayawickrama, S Foerster, A Engaging Communities in Land Use Change: Water Towards an Ecologically Sustainable Allocation of Water Trading, Salinity and Regional Development Resources? An Analysis of Recent and Ongoing Water Supervisors: Ruth Beilin and Lee Godden Law Reform in NSW and Victoria, with Respect to their Capacity to Deliver Environmental Outcomes Kelly, C Supervisors: Lee Godden and David Farrier Is Australia in Violation of the International Human Right to Non-Discriminatory and Equitable Access to Health Care Forrest, L Services of Aboriginal and Torres Strait Islander Peoples?: Communicating Genetic Information to Family Members: Possibilities and Limitations of National and International Practical, Ethical, Legal and Social Implications Legal Procedures Supervisors: Mary Anne Aitken, Mary Delatycki, Loane Supervisors: Carolyn Evans and Ian Anderson Skene and Lisette Curnow Kent, L Frith, A The Effectiveness of Justice and Reconciliation Initiatives Sustainable Indigenous Entities for Making Agreements in Timor Leste Supervisors: Maureen Tehan, Lee Godden and Supervisors: Julie Evans and Dianne Otto Marcia Langton Kingsley, J Gerber, P Pancasila Society: Community Engagement in Lombok From Convention to Classroom: The Long Road to Human Supervisors: Tim Lindsey and Abdullah Saeed Rights Education Supervisor: Dianne Otto Kirk, S The Inner Logic of : Private Ownership and Graydon, C Liberal Irony Domestic Violence in Timor-Leste: Is there a Place for Supervisors: Lee Godden and Jenny Beard Indigenous Justice Systems? Supervisors: Tim Lindsey and Dianne Otto

112 Melbourne Law School Research Report 2007 Graduate Research Degrees in Progress

Lach, K Mihalopoulos, A The EU and the Contemporary Notion of State Sovereignty The Granting of ‘Recognition Space’ to Indigenous Peoples Supervisors: Anne Orford and Carolyn Evans and Ethnocultural Groups with a Particular Emphasis on the Concepts of ‘Self-Determination’ and ‘Legal Pluralism’ Le Roy, K Supervisors: Beth Gaze, Lisa Sarmas and Victor New Democratic Participation in Constitution Making: Emerging Best Practice Muriu, D Supervisor: Cheryl Saunders Recognition, Redistribution and Protection: Assessing the usefulness of Human Rights in the Task of Realising Better Lesh, M Health in sub-Saharan Africa in the Context of Challenges Israel’s Policy of Targeted Killing and International Posed by International Economic Actors Humanitarian Law Supervisors: Anne Orford and Jenny Beard Supervisors: Tim McCormack and Helen Durham Musa, N Limon, C Administration of Religion in the Federal Structure of Genes, Biotechnology and Legal Imaginings Malaysia Supervisors: Anne Orford and Lee Godden Supervisors: Carolyn Evans and Cheryl Saunders

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

Liu, G Nastevski, V The Role of Equity in Trusts Law: The Legislation and The Enactment of War Crimes Legislation in Australia Application of the Chinese Trust Code without Offending the Prohibition on Retrospective Supervisors: Michael Bryan and Sarah Biddulph Legislation Mathews, R Supervisors: Tim McCormack and Michelle Foster The Negotiation of the Chemical Weapons Convention, Oswald, B and its Implications for Other Arms Control Regimes The Application of International Law to United Nations and Supervisors: Tim McCormack and Stuart Kaye Regional Peace Operations McDougall, C Supervisors: Tim McCormack, Wendy Larcombe and Prosecuting the Accumulated Evil of the Whole: Defining Daniel Bethlehem an ‘Act of Aggression’ for the Purposes of the Rome Otomo, Y Statute of the International Criminal Court The Changing Landscapes of Risk Supervisors: Tim McCormack, Stuart Kaye and Supervisors: Anne Orford and Jenny Beard Gerry Simpson Parker, A McGlone, D The Family Law Amendment (Shared Parental The Role of the Defendant in Criminal Trials in Victoria, Responsibility) Act 2006: A Study of the Impact of the Particularly in Relation to Sex Offence and Terrorism Trials Legislation on Judicial Determination of Shared Parenting Supervisors: Peter Rush and Jeremy Gans Cases Merrett, A Supervisors: Belinda Fehlberg and Helen Rhoades Assessments and Regulation of Market Power in Australia Parker, D Supervisors: Geof Stapledon, Rachel Trindade and Lifting the Veil and Corporate Personality Rhonda Smith Supervisor: Ian Ramsay

Graduate Research Degrees in Progress 113 Graduate Research Degrees in Progress

Pausacker, H Shi, C In the Eye of the Beholder: Law, Pornography and Corporate Governance, its Theoretical Development and Indonesia’s Islamic Defenders Front Issues of Chinese Corporate Governance Supervisors: Tim Lindsey and Abdullah Saeed Supervisor: Tim Lindsey

Pourpouras, J Simic, O Islamic Financing: The Use of Zakat and Non-Riba Gender Based Violence and Human Rights Violations Transactions in Islamic Banks and Charities to Facilitate Committed by UN Peacekeepers Terrorism Financing Practices Supervisors: Dianne Otto and Michelle Foster Supervisor: Tim Lindsey and Abdullah Saeed Storey, M Purcell, J Statutory Property in Australia A Corrective and Distributive Justice Analysis of Creditor Supervisors: Simon Evans and Lee Godden Entitlements in Bankruptcy Supervisor: Michael Bryan Sugden, P An Analysis of Remedies in International Property Law Ruschena, D Supervisor: Michael Bryan Litigation and Liability as Regulation to Reduce Tobacco Related Harm: Making the Polluter Pay for the Harm Tan, D Tobacco Causes How Can Cultural Studies Contribute to Right of Publicity Supervisors: Christine Parker, John Howe and Laws Protecting the Commercial Value of the Celebrity Jonathan Liberman Identity? Supervisors: Andrew Christie and Andrew Kenyon Saboor, H Blasphemy Law: A Violation of Right of Free Speech or a Tassin, V Protection against its Abuse The Extension of the Continental Shelf Supervisors: Carolyn Evans and Amanda Whiting Supervisors: Stuart Kaye and Andrew Mitchell (This project is being conducted under a cotutelle Saunthararajah, J agreement with the Sorbonne University) Constantly Colonised: Legal Containment of Minority Religions Legal Identities in Post-Colonial Singapore Tobin, J Supervisors: Pip Nicholson, Abdullah Saeed and Between Apology and Utopia: An Attempt to Map Out the Li-Ann Thio Content of Article 24 of the UN Convention on the Rights of the Child Saw, TG Supervisors: Anne Orford and Philip Alston Film Censorship in Malaysia and Australia: Judicial Control and Legal Remedies Ujvari, L Supervisors: Andrew Kenyon and Amanda Whiting Human Rights and Development: Children’s Psycho-social Recovery in the Post-conflict Context - A New Conceptual Schlesinger, N Model Making International Criminal Law: Factors Influencing Supervisors: Violeta Schubert and Carolyn Evans Judicial Behaviour at the ICTY and ICTR Supervisors: Tim McCormack and Tim Marjoribanks Vaitiekunas, A The Court of Arbitration for Sport: Does it Make Law? Sheehan, K Supervisors: Hayden Opie, Gillian Triggs and David Wood In Excess: Does Extended Disclosure of Executive Remuneration Expose the Links Between Company Wardrop, A Performance and the Level of Executive Remuneration The Regulation of Essential Service Insolvencies and Supervisors: Geof Stapledon and Chander Shekhar the Public Interest: Case Studies of Australia’s Electricity Industry and Melbourne’s Public Transport Industry Supervisor: Tim Lindsey

114 Melbourne Law School Research Report 2007 Graduate Research Degrees in Progress

Welsh, M Master of Laws by Thesis Civil and Administrative Penalties and the Corporations Act Supervisor: Ian Ramsay Brodie, M ‘No-one Shall Be Subjected to Torture’: The Mongolian White, A Reality. A Case Study of the Effectiveness of National Islamic Arbitration (Takhim) as an Answer to Demands Human Rights Institutions’ Strategies and Responses to for Shari’ah-based Dispute Resolution in the Context of Human Rights Violations in the Asia-Pacific Region Secular States. An Analysis of the Experience in Indonesia Supervisors: Dianne Otto and Brian Burdekin and a Proposed Framework for Implementation in the United States Date, J Supervisors: Tim Lindsey and Abdullah Saeed Implications of Canon Law for Church Organisations Operating in Australia Wynn-Pope, P Supervisors: Ian Ramsay, Carolyn Evans and The Responsibility to Protect against Crimes against Robin Sharwood Humanity and Genocide: Applying the Principle Supervisors: Tim Lindsey and Tim McCormack Donovan, P Searching for the Perfect General Anti-Avoidance Rule Yapao, G (‘GAAR’) - A Worthwhile Pursuit or Pipedream? State Participation in Mining and Petroleum Development Supervisor: Miranda Stewart in Papua New Guinea Supervisors: Michael Crommelin, Lee Godden and Duong, M Singh Bhalla Commercial Dispute Resolution in the Vietnamese Economic Court Young, C Supervisors: Pip Nicholson and P Eli Mazur The History of Judicial Dissent Supervisors: Michael Bryan and John Baker Dzau, J Corporate Social Responsibility: To Act in the Best Doctor of Juridical Science Interests of the Company – A Paradigm Shift Supervisors: Christine Parker and James McConvill Adam, K Mediating Work and Family Responsibilities: A Gisonda, E Comparative Study of Legislative Strategies Ideology of Australian Contract Law Supervisors: Jenny Morgan and Beth Gaze Supervisor: Andrew Robertson

Green, M Hochstrasser, D Election Communication Law and Practice in Australia, the The Admittance of Physical Evidence United Kingdom and the United States. Supervisors: Jeremy Gans and Andrew Palmer Supervisor: Andrew Kenyon Irving, J Rome-Sievers, C Security and Liberty: Anti-terrorism Laws in Australia Commercial Fraud and Recovery of Assets Supervisors: Tim McCormack and Carolyn Evans Supervisor: Michael Bryan Lester, E Realising the Economic, Social and Cultural Rights of Non- Citizens: Enhancing Rights and Remedies in Australia Supervisor: Jenny Beard

Nel, E Child Victim Witnesses of Sexual Offences in the Criminal Justice System Supervisors: Jeremy Gans and Andrew Palmer

Graduate Research Degrees in Progress 115 Graduate Research Degrees in Progress

Parsley, C Giorgio Agamben and the Failure of Law Supervisor: Peter Rush Testart, M The Legal Duties that Teachers Owe to Students Supervisor: Christian Witting Thomas, T Relationship Contracting for the Delivery of Major Infrastructure Projects: Panacea or Placebo? Supervisor: Fred Ellinghaus

116 Melbourne Law School Research Report 2007 Compiled by the Office for Research (LAW) For more information Mr Matt Randall– Manager Law Research Melbourne Law School Ms Angela Hendley-Boys – Project Officer Location: University Square Ms Lucy O’Brien – Research Support Officer 185 Pelham Street, Carlton, Victoria 3053 Ms Mas Generis – Research Administration Officer Tel: +61 3 8344 1090 Ms Sophia Garrett – Administrative Officer Fax: +61 3 8344 4601 Website: www.research.law.unimelb.edu.au 2007www.research.law.unimelb.edu.au

Authorised by the Associate Dean (Research) Published by the Office for Research (Law) The University of Melbourne

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