monash law · 2 / monash law book of abstracts program – monday 10th october 2016 8.30am...

MONASH LAW

BOOK OF ABSTRACTS

ARNOLD BLOCH LEIBLERHONOURS CONFERENCE10 & 11 OCTOBER 2016

2 / MONASH LAW BOOK OF ABSTRACTS

PROGRAM – MONDAY 10TH OCTOBER 2016

8.30am REGISTRATION – COLLECT NAME TAGS AND BOOK OF ABSTRACTS

9 –10.30am Welcome and P lenar y – Assoc ia te Pro fessor Doug las Gu i l foy le , Assoc ia te Dean (Research)Keynote , Guest Speaker – Nyado l Nyuon, Lawyer, Arno ld B loch Le ib le r

10.30 –11am M O R N I N G T E A

SESSION

1 11–12.30am

1A: Privacy and the LawChair: Jeremy Lanzer, Senior Associate, Commercial, ABL

1. NIKITA MATCHADO – Regulating the Indexing of Society’s Permanent Memory Drive: Should the European Union’s Right to be Forgotten be Adopted in Australia? Supervisor: Associate Professor Normann Witzleb

2. MADELEINE REILLY – Nothing to Hide? Why we should still Fear Metadata Retention Supervisor: Associate Professor Janice Richardson 3. REBECCA TORSELLO – Growing Up Famous: Celebrity Children and Their Right to Privacy Supervisor: Dr Sharon Rodrick

1B: Directors and FiduciariesChair: Associate Professor Patrick Emerton

1. THOMAS CLEEVE – The Errant Fiduciary as Constructive Trustee: In Defence of Discretionary Remedialism Supervisor: Associate Professor Patrick Emerton

2. STEFAN VUJACIC – Sink, Swim or Scuttle: Is Providing Australian Company Directors with an Insolvent Trading ‘Safe Harbour’ an Appropriate Reform? Supervisor: Associate Professor John Duns

1C: Implementing International Rights and ResponsibilitiesChair: Dr Joanna Kyriakakis

1. JAMES CAMPBELL – Safe Schools, Senators and LGBTIQ Students: Analysing the Safe Schools Coalition Through the Lens of the UN Convention on the Rights of the Child Supervisor: Professor Paula Gerber

2. ESTELLE PETRIE – The Business of Women’s Rights: The Intersection of the Convention on the Elimination of Discrimination Against Women and the UN Guiding Principles on Business and Human Rights Supervisor: Dr Joanna Kyriakakis

12.30 –1.30pm L U N C H

SESSION

2

2A: Human Rights and International Law Chair: Associate Professor Patrick Emerton

1. FLAVIA BAIRD-WATSON – Fighting ISIS, Praying for Peace: The Lack of Legal Justification for Australia’s Use of Force in Syria Supervisor: Associate Professor Douglas Guilfoyle

2. CAITLIN MURPHY – More than Minimalism: Critiquing the Minimalist approach as a Way of addressing the Political Ramifications of Human Rights Supervisor: Dr Richard Joyce

3. ADAM ZIMBLER – National (In)Security: Combatting Domestic Rights Abuses with Cosmopolitan Visions of Human Rights Supervisor: Associate Professor Patrick Emerton

2B: Liability, Culpability and SanctionsChair: Associate Professor Normann Witzleb

1. TOM EGAN – Just Sanctions: The Role of Retributivism and Proportionality in Quantifying Pecuniary Penalties Supervisor: Professor Jonathan Clough

2. MADELEINE HALE – Autonomy as a Policy Factor in the Recognition of a Duty of Care on Commercial Alcohol Servers Supervisor: Dr Colin Campbell

3. SASHA DI SIPIO – A Risky Business: Immersive Theatre and Negligence Supervisor: Associate Professor Janice Richardson

2C: Administrative Law IChair: Dr Colin Campbell

1. CORRINA VIRTANEN – The Public-Private Divide: Jurisdiction to Conduct Judicial Review of Decisions of the Financial Ombudsman Service Supervisor: Dr Colin Campbell

2. AILSA WALLACE – The Distinction Between Regulatory and Judicial Powers Supervisor: Dr Janina Boughey

3. ERIN MOLONY – Royal Commissions and the Rule Against Bias Supervisor: Dr Maria O’Sullivan

3 –3.30pm A F T E R N O O N T E A

SESSION

3 3 .30–5pm

3A: Power, Protection and PersonalityChair: Dr Karen Wheelwright

1. RACHEL MORRIS – When the Attacker becomes the Victim: The Forfeiture Rule, Edwards and its Implications for Battered Women Supervisor: Professor Matthew Groves

2. JONATHAN UNGAR – Internships: A need for Protection in Australian Employment Law Supervisor: Dr Karen Wheelwright

3B: Corporate Social ResponsibilityChair: Jasmine Kahan, Lawyer, Commercial, ABL

1. EMMA FFRENCH-MULLEN – A Director’s Duty: One Solution to Corporate Disregard for Human Rights Supervisor: Dr Adam McBeth

2. MADELEINE FOOTE – Super-Heated: Climate Change Slowly Pressuring Superannuation Trustees into Action Supervisor: Dr Susan Barkehall-Thomas

5.30 –7.30pm COCKTAIL FUNCTION AT ARNOLD BLOCH LEIBLER – 333 COLLINS STREET

1.30–3pm

MONASH LAW BOOK OF ABSTRACTS / 3

PROGRAM – TUESDAY 11TH OCTOBER 2016

SESSION

4 9–10.30am

4A: Adminstrative Law II Chair: Dr Janina Boughey

1. TAMARA CHERNY – Where to Now? The Future of Procedural Fairness after the ‘Dismissal’ of Legitimate Expectations Supervisors: Professor Matthew Groves and Dr Maria O’Sullivan

2. MIRAN FERNANDO – Plaintiff M70/2011 and The Scope of Jurisdictional Facts in Australian Administrative Law Supervisor: Dr Janina Boughey

3. MADELEINE SALINGER – Built on Sand: The Shaky Foundations of the Implied Freedom following McCloy v New South Wales Supervisors: Professor Jeffrey Goldsworthy and Dr Lisa Burton-Crawford

4B: Tax and International CommerceChair: Professor Stephen Barkoczy

1. ANDREW BISSET – Take That! A Critical Analysis of the Indirect Expropriation Doctrine as it appears in the Trans-Pacific Partnership Agreement Supervisor: Professor Jeffrey Waincymer

2. JOSIE LIU – Taxing Digital Enterprises: Web Servers as Permanent Establishments under International Tax Treaties Supervisor: Professor Stephen Barkoczy

4C: Communication and ExpertiseChair: Ms Sharon Rodrick

1. SIMONE GOULD – Too Much, Too Little or Just Right: An Analysis of Journalist Privilege in Victoria Supervisor: Dr Sharon Rodrick

2. YANNIS GOUTZAMANIS – Getting Economics into the Courtroom: A Court-Appointed Expert Supervisor: Associate Professor John Duns

10.30 –11am M O R N I N G T E A

SESSION

55A: Copyright and Competitions LawChair: Professor Justin Malbon

1. THOMAS SMALLEY – Australia: No Longer a Market Girt by Sea? A Critical Examination of the Market Definition Process in Australia following ACCC v PT Garuda Indonesia Supervisor: Associate Professor John Duns

2. ELIZABETH TAN – A Fair Go for Fan Fiction: Australian Copyright Quandaries and Proposals for Reform Supervisor: Professor Justin Malbon

5B: Science, Medicine and the LawChair: Jason van Grieken, Senior Associate, Commercial, ABL

1. MYRA BEAL – The Genetic Eyewitness: Regulating DNA Phenotyping in Australia Supervisor: Dr Karinne Ludlow

2. RUMESH GNANASEELAN – No-Fault Compensation for Medical Injury: Exploring the Patient Safety Potential Supervisor: Dr Genevieve Grant

12.30 –2.30pm L U N C H

11–12pm


FLAVIA BAIRD-WATSONSupervisor: Associate Professor Douglas Guilfoyle

Fighting ISIS, Praying for Peace: The Lack of Legal Justification for Australia’s Use of Force in Syria

The recent series of ISIS-led and inspired terrorist attacks around the globe and the horrific violence in Iraq and Syria has sparked a forcible response from the international community, including Australia. This thesis undertakes an Australian focused analysis of the legal justification for forcible intervention in Syria. Until now such analysis has been lacking. Four justifications for Australia’s use of force in Syria will be examined. First, self-defence of Australia is considered. This is very unlikely to be established because no armed attack against Australia has occurred nor is a threat apparent from the information available. Second, as claimed by the Australian Government, is collective self-defence of Iraq. However, the doctrine of self-defence does not, and should not, allow the use of force against a non-State actor on another State’s territory without a link between that State and the non-State actor. Third, Resolution 2249 does not support forcible intervention in Syria because it was not passed under Chapter VII nor does its text legitimise actions taken in collective self-defence. Fourth, Australia could have intervened if Syria had granted its consent, but Syria has not done so. Australia’s use of force in Syria lacks foundation in international law. Since ISIS- inspired terrorist attacks continue to occur, Western power’s resort to the use of force in the Middle East should be reconsidered. The United Nation’s international security function should not be replaced by an expansion of collective self-defence. Such an expansion is unwarranted and disregards one of the central concepts of international law: respect for States’ territorial integrity and political independence.

Biography

Flavia is in her final year of a Bachelor of Engineering (Chemical) and Bachelor of Laws degree. The highlight of Flavia’s time at university was completing a research project where she created and tested carbon capture membranes with her best friend and colleague. Flavia likes keeping active and enjoys long distance running, open water swimming and skiing. Flavia is looking forward to beginning a graduate role in London with Linklaters in 2017.

JEDDA BAMFORDSupervisor: Dr Joanna Kyriakakis

Animals as Legal Persons? Examining the Potential Compatibility of Legal Personality and the Advancement of Animal Rights Law

Our understanding of non-human animals’ sentience and cognitive complexities is increasingly well-documented. Why, then, are animals considered mere property, or ‘things’ under Australian law, without the capacity to possess basic legal rights? This thesis will examine the potential for non-human animals to acquire some form of legal personality in Australia. First, the paper outlines the legal status of animals and current law: principally, State-based anti-cruelty legislation. Part II focuses on an analysis of animal legal personality measures internationally, with a key focus on the United States and the efforts of the Nonhuman Rights Project with respect to the common law writ of habeas corpus. An in-depth analysis of what legal personality is under Australia law takes place in Part III. This part queries the nature of the legal concept itself, and discusses how legal personality links to notions of legal standing, and the creation of rights. Drawing on the preceding discussion, Part IV assesses the potential and implications of attempting to achieve limited legal personality for non-human animals in Australia, and canvasses alternative avenues for the advancement of animal rights law.

Biography

Jedda is completing her penultimate year of her Arts (Politics)/Law double degree. Having volunteered with rescued elephants in Thailand during her gap year, Jedda decided to investigate the legal gulf that exists between humans and animals. Aside from her love of cute animal videos, Jedda enjoys working as a paralegal and volunteering as a tutor.

MYRA BEALSupervisor: Dr Karinne Ludlow

The Genetic Eyewitness: Regulating DNA Phenotyping in Australia

Forensic DNA Phenotyping (FDP) is an emerging form of forensic DNA analysis that could assist criminal investigations by using crime scene DNA to predict the physical appearance of suspects. Traits including gender, geographic origin, hair and eye colour can be combined to produce genetic artists’ renderings. In the future, the technology could test more sensitive traits such as predispositions to disease and even psychological propensities.

While the science is relatively new, the benefits for forensic investigation are significant. Phenotyping has already been instrumental in solving serious criminal cases around the world. However, FDP is unregulated in most jurisdictions, including Australia. This paper examines the status of FDP under current Australian law as well as a number of other jurisdictions. Overseas practices and legislation, such as the Netherlands where FDP is expressly legalised, the UK where phenotypic testing has been used by police without legislative authority and Germany where it is prohibited, provide a springboard for discussion. This paper then considers the major objections to FDP including infringement of suspects’ right not to know, invasion of privacy, exacerbating racial profiling and slippery slope arguments to assess whether and how regulation can address objections.

Despite concerns and the early state of the technology, this paper submits that the public benefit of FDP favours its legalisation for investigative use in Australia. Informed by existing Australian legislation and overseas approaches to regulation of FDP, this paper proposes a flexible trait-by-trait approach to regulating the technology to best address concerns and prevent future misuse.

Biography

Myra is a final year Biomedical Science/Law student. A desire to combine both her legal and scientific skills inspired her research into DNA Phenotyping. Some of her university highlights include mooting and attending the National Model United Nations Conference in New York. Myra will be taking a much anticipated holiday before starting at Herbert Smith Freehills in 2017.


ANDREW BISSETSupervisor: Professor Jeffrey Waincymer

Take That! A Critical Analysis of the Indirect Expropriation Doctrine as it Appears in the Trans-Pacific Partnership Agreement

The Trans-Pacific Partnership (TPP) Agreement grants foreign investors protection against the indirect expropriation of their investments. However, it is contended that the clauses granting this protection are unsuitable for the task. The definition of indirect expropriation as provided in the TPP directs a tribunal to consider the motive behind a particular government action. However, motive should not be considered a relevant issue in determining whether a state has effectively ‘taken’ an investment. Even if motive is considered relevant, the test contained in Annex 9-B lacks sufficient clarity to guide a Tribunal’s determination. This unfortunate situation is detrimental to both the Parties to the agreement, who are unsure of the scope of their legislative and executive authority, as well investors, whose confidence in the security of their investments is undermined. An alternative model that considers a measure’s practical and economic impact would better reflect the indirect expropriation doctrine as it appears in international law and would provide all parties with a greater degree of certainty.

Biography

Andrew is in his final semester of a Bachelor of Laws degree. The highlight of his degree was last year, when he competed as part of the Monash University VIS Moot team in Vienna, before studying at the Monash University Prato Centre, Italy. Andrew is looking forward to going golfing in China this summer as well as hiking in New Zealand before commencing a graduate position at MinterEllison in 2017.

JAMES CAMPBELLSupervisor: Professor Paula Gerber

Safe Schools, Senators and LGBTIQ Students: Analysing the Safe Schools Coalition Through the Lens of the UN Convention on the Rights of the Child

At a time when global efforts to advance the human rights of LGBTIQ children are gathering increasing momentum, Australia has taken a retrograde step. In 2016, the Safe Schools Coalition - a program directed at promoting the health, wellbeing and human rights of LGBTIQ young people in schools - was wound back by the Australian Government, ostensibly to protect children from material that is ‘inappropriate’. This followed mounting pressure from conservative commentators, lobbyists and politicians who denounced the program as ‘indoctrination’ by the ‘homosexual agenda’ and akin to a ‘social engineering program’. Against this highly charged political background, this paper adopts the UN Convention on the Rights of the Child to level a child rights critique of the Safe Schools program and the government’s changes to it. By analysing the program through a child rights lens, it aims to replace the divisive rhetoric that has driven the Safe Schools debate until this point with an accepted, objective and legally binding framework in which the human rights of LGBTIQ children - not the political goals of politicians or interest groups - are placed squarely at the centre of the decisions that affect them.

Biography

James is a final year Arts/Law student. He has a strong interest in LGBTI human rights generally, and in protecting and promoting the rights of LGBTI young people specifically. He is looking forward to travelling the US and Canada over the break before commencing as a graduate at King & Wood Mallesons in 2017.

TAMARA CHERNYSupervisor: Professor Matthew Groves and Dr Maria O’Sullivan

Where to Now? The Future of Procedural Fairness after the ‘Dismissal’ of Legitimate Expectations

Procedural fairness is a fundamental aspect of administrative law and one of the main grounds for judicial review. Put simply, it requires that an individual who may be adversely affected by an administrative decision be given an opportunity to be heard. It also requires that administrative decisions are free from bias.

Procedural fairness (under the hearing rule) has broadened over the last few decades. It is now presumed to apply to all administrative decisions that are able to adversely affect a sufficient interest of an applicant, unless manifestly excluded by statute. The doctrine of legitimate expectations has therefore been deemed irrelevant in assessing whether the duty of procedural fairness attaches to a decision. Attempts were made by some judges to readjust the function of the doctrine so that it instead described the content of procedural fairness. Yet the High Court finally rejected the ambiguous and contentious doctrine in Minister for Immigration and Border Protection v WZARH (2015).

This thesis explores the future direction of procedural fairness after WZARH. It suggests that although the doctrine of legitimate expectations was not an appropriate descriptor, the High Court ought to fulfill its educative role by defining and characterising the content of procedural fairness using other terms. It is argued that the language of practical injustice and reasonable opportunity, employed in WZARH, effectively describe the requirements of procedural fairness, fill the conceptual gaps left behind after the rejection of legitimate expectations, and promote the dignitarian and utilitarian values underpinning procedural fairness.

Biography

Tamara is completing her final year of a Bachelor of Arts/Law. Her Arts major is Philosophy, and she has enjoyed integrating some philosophical themes into her thesis. Tamara looks forward to exploring Japan and Europe at the end of the year before commencing as a graduate at the Australian Government Solicitor in 2017.


EMMA CLARKSupervisor: Dr Gerry Nagtzaam

Will the Environment Ever Have Standing? Lessons in Legal Personhood from the Whanganui River Agreement

In 2012, the Whanganui River on New Zealand’s North Island became the first environmental object to be recognised as a legal person. The agreement is the result of a long campaign by the local Whanganui Iwi tribe to have their special and harmonious relationship with the river recognised. The river’s status as a legal person will be enforced by two guardians, a member of the Crown and a member of the local indigenous tribe.

The agreement follows a long and fractured debate over whether environmental objects, such as lakes, rivers and forests, should be given legal standing as a means of environmental protection. While the debate, first sparked by Christopher Stone’s seminal article Should Trees have Standing?, has been ongoing since 1971, it has failed to gather any real traction in political and legal circles, and has largely been confined to academia.

This thesis will explore the history behind the Whanganui River Agreement. It will examine the positive and negative elements of the document, and assess the contribution the document makes to the Rights of Nature movement. Finally, this thesis will examine the potential for a similar type of agreement in Australia.

Biography

Emma will finish her Arts/Law degree in July 2017. She studied Indonesian language as her Arts minor and considers her two internships in Indonesia to be the highlights of her university studies. Emma is looking forward to embarking on a career that combines her skills in law with her love for culture and the arts. When’s not studying, Emma is probably reading, writing, or out enjoying Melbourne’s best festivals, galleries or coffee shops.

THOMAS CLEEVESupervisor: Associate Professor Patrick Emerton

The Errant Fiduciary as Constructive Trustee: In Defence of Discretionary Remedialism

In Australia, an errant fiduciary may be called to account by the imposition of a constructive trust. The imposition of such a trust is a remedy: it is conferred in response to a personal wrong. The court has the discretion to refuse the award of this proprietary remedy. This kind of trust is known as a ‘remedial’ constructive trust. In the UK, however, a constructive trust is not a remedy that is conferred. Where a fiduciary obtains a benefit as a result of their breach, that benefit is immediately held on trust for the principal; the court merely declares the existence of that trust. This kind of trust is known as an ‘institutional’ constructive trust.

The argument presented here is that the UK approach is conceptually incoherent and lacks precedential authority. The content of a fiduciary’s duty of loyalty is proscriptive. When this proscriptive duty is breached, the fiduciary is liable to account: he or she must disgorge any profits made in breach. The fiduciary is under no obligation, and never comes under an obligation, to hold any benefit obtained by virtue of his personal wrong on trust for the principal. The court may give effect to the fiduciary’s liability to account via a proprietary or personal remedy. Having offered a broad defence of the remedial constructive trust, this thesis proceeds to examine the precise standards by which the discretion to award a constructive trust may be exercised. The position of this thesis is that the Australian standards are, largely, coherent and desirable.

Biography

Thomas is studying Arts/Law and is currently in his fifth year. Thomas’ interest in equity stems from the relatively high level of discretionthat the courts are permitted to exercise in this area. He believes that this discretion, if exercised appropriately, produces better results. Thomas is also fascinated with China: he studied Mandarin at university, and has studied in China twice. Next year, he plans to study at the University of Hong Kong on exchange.

SASHA DI SIPIOSupervisor: Associate Professor Janice Richardson

A Risky Business: Immersive Theatre and Negligence

Drawing crowds for its interactive and often unpredictable nature, immersive theatre is becoming increasingly popular in Australia. The direct involvement of audience- participants, the prioritisation of multi-sensory experiences and the unconventional spaces in which such performances take place give rise to risks of harm that aren’t present in traditional theatre. Although potentially riskier than its traditional counterpart, immersive theatre is valuable and should therefore be protected and encouraged. This thesis argues that the current law of negligence in Victoria places too high a burden on immersive theatre artists to take care for the safety of audience-participants, and not enough responsibility on audience- participants to take care for their own safety. Due to the potentially detrimental effects this can have on immersive practice, reform is required. It is argued that reform should be founded on principles of autonomy and personal responsibility, and should aim to ensure a reasonable allocation of risk between immersive theatre artists and audience-participants. Suggested reforms include adopting a provision similar to s 5M of the Civil Liability Act (NSW), enacting an express provision removing liability for a failure to warn of an obvious risk, and implementing uniform civil liability legislation across Australia.

Biography

Sasha is in her sixth and final year of Arts/Law. The highlight of her degree was going on exchange to the University of Miami in 2012. She enjoys art and has designed numerous immersive theatre works and installations across Melbourne. Sasha looks forward to spending time in Berlin at the end of the year before commencing as a graduate at Maddocks in 2017.


TOM EGANSupervisor: Professor Jonathan Clough

Just Sanctions: The Role of Retributivism and Proportionality in Quantifying Pecuniary Penalties

Civil penalties are a hybrid between criminal and civil court orders and consequently have features of both. In Fair Work Building, the High Court stated in obiter that civil penalties are not retributive. On this view, civil penalties are regulatory tools for achieving a particular outcome through deterrence. One element of retributivism is proportionality: the notion that the gravity of the penalty must be limited by the gravity of the wrongdoing. By disavowing retributivism, the High Court has removed the conceptual basis for proportionality in calculating civil penalties. While penalties that are proportionate to the gravity of the contravention may generally be conducive to deterrence, this is not necessarily the case. As such, civil penalties may be vastly disproportionate to the gravity of the contravention where there is a particular need for deterrence. Consequently, disavowing retributivism eschews criminal law principles that are seemingly necessary for a just regulatory system. This is not necessarily of concern for a civil penalty system that seeks to achieve greater results by abandoning much of the procedural protections afforded in the criminal process. The existence of this debate highlights the continuing need for a comprehensive and effective Regulatory Contraventions Statute, which the Regulatory Powers (Standard Provisions) Act 2014 (Cth) has not delivered. Retributivism is a necessary component of a civil penalty regime because proportionality is both inherently desirable and conducive to the integrity of a regulatory system.

Biography

Tom is an Arts(Philosophy)/Law student due to graduate in mid-2017. He greatly enjoyed Monash’s professional practice program at Springvale Monash Legal Service as well as representing Monash at the Willem C. Vis International Commercial Arbitration Moot in Hong Kong and Vienna. Outside of the law, he enjoys hiking, cycling, and playing Age of Empires II.

MIRAN FERNANDOSupervisor: Dr Janina Boughey

Plaintiff M70/2011 and The Scope of Jurisdictional Facts in Australian Administrative Law

The central issue in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 was whether Section 198A(3) of the Migration Act contained jurisdictional facts which were required to be satisfied before the Minister for Immigration and Citizenship’s power to make a declaration was enlivened. Section 198A concerned the transportation of asylum seekers from Australia to countries where a declaration had been made by the Minister stating that they possessed the characteristics specified by Section 198A(3). The finding that facts are jurisdictional has significant implications. It allows a court to engage in the fact-finding process, effectively putting itself in the position of the Minister in order to determine whether the jurisdictional facts existed. If a fact is not jurisdictional, a court is confined to the regular grounds of review, such as Wednesbury unreasonableness.

This thesis will use principles derived from case law and academic commentary in analysing the persuasiveness of the differing approaches taken by the judges in determining whether the provision contained jurisdictional facts, arguing that the judgment was motivated by the High Court’s desire to use administrative law to enforce human rights. This thesis will then analyse the implications that a finding of jurisdictional fact has for the separation of powers, as the High Court risks engaging in merits review and thus encroaching onto the functions of the executive. Finally, this thesis will outline how the executive and courts can reach a compromise when faced with similar statutory provisions in future.

Biography

Miran is a final year Arts/Law student. Highlights from his time at Monash include travelling to New York to participate in NMUN-2014, volunteering at the Monash -Oakleigh Legal Service and as an Access Monash Ambassador, and being World Point’s most loyal and valued customer. Miran thoroughly enjoyed studying public law units culminating in the completion of his thesis, and is looking forward to travelling and recovering from five years of university, before entering the real world.

EMMA FFRENCH-MULLENSupervisor: Associate Professor Adam McBeth

A Director’s Duty: One Solution to Corporate Disregard for Human Rights

In an era of rapid globalisation, multinational corporations are among the most powerful economic and social actors, yet they remain notoriously difficult to regulate. This accountability gap is perhaps most apparent in the field of human rights law. Systematic corporate violation of human rights in the developing world occurs regularly and without consequence. Since the publication of the United Nations’ Guiding Principles on Business and Human Rights, an uneasy international consensus has existed which recognises the responsibility of corporations to respect human rights. However, the international order has failed to translate corporate responsibility into binding obligations due to its own division and inertia. It therefore falls to nation states to hold corporations to account, in fulfilment of their legal duty to protect human rights.

Within an Australian context, this thesis examines the potential of company law, specifically directors’ duties, to prevent and address corporate human rights. There is a clear need to re-examine the very foundational structures that permit and even encourage disregard for human rights in business activity. This thesis argues for the introduction of a new duty requiring directors to ensure respect for human rights in the conduct of company business. The proposed model serves to institutionalise human rights concerns in corporate decision -making, and to provide a mechanism through which companies can be held accountable for violations. This thesis outlines the proposed duty and seeks to address the key challenges and objections that it faces.

Biography

Emma is a fifth year Arts (French)/Law student. She is passionate about human rights law and became interested in her thesis subject after studying the issue on exchange at Leiden University in the Netherlands. After completing her degree, she is looking forward to travelling across Europe before beginning her legal career.


MADELEINE FOOTESupervisor: Dr Susan Barkehall-Thomas

Super-Heated: Climate Change Slowly Pressuring Superannuation Trustees into Action

Climate change presents material financial risks for investors. These risks are manifested primarily in two ways. First, the direct physical damage and loss caused by increased global temperatures. Secondly, carbon-intensive investments are at risk of devaluation as new policies and regulations are introduced to mitigate the worst effects of climate change.

In Australia, the trustees of superannuation funds manage investment portfolios collectively worth over $AUD2 trillion. These highly-diversified, long-term investments face devaluation and diminished returns as a result of climate change risk. Yet, to date, the treatment of climate change risk by superannuation trustees has been remarkably restrained. This thesis examines possible reasons for the subdued treatment of climate change risk within the context of superannuation trustees’ fiduciary duties and statutory requirements.

This thesis contends that superannuation trustees must integrate climate change risk into their investment strategies to comply with their legal obligations. Subsequently, it examines several options to encourage effective compliance amongst trustees. The mere offer to superannuation members of an investment strategy option with integrated climate change risk is found to be insufficient. Instead, direct regulatory guidance is determined to be the most compelling method for ensuring compliance. The thesis concludes that, while awareness of climate change risk is increasing amongst superannuation trustees, the urgency and importance of this issue may only be effectively addressed through regulatory change.

Biography

Maddy is in the sixth and final year of her combined Bachelor of Engineering (Civil) and Bachelor of Laws. Her choice of topic is due in large part to a keen interest in climate change law and policy. Maddy will travel over summer before commencing as a graduate at Allens in 2017.

RUMESH GNANASEELANSupervisor: Dr Genevieve Grant

No-Fault Compensation for Medical Injury: Exploring the Patient Safety Potential

Improving patient safety is a logical focus for a medical injury compensation system. Implementing safer systems translates to fewer injuries and reduces the burden on healthcare providers. Despite this, there is a considerable evidence gap: though a significant body of literature considers whether tort or no-fault systems provide better compensation, comparatively little research examines the relationship between the liability environment and improved patient safety.

This thesis explores whether no-fault compensation schemes (NFCSs) can improve patient safety with regard to three important features: practitioner behaviour, accountability, and the utilisation of claims data. It asks whether NFCSs can: 1) facilitate a less-punitive practising environment that improves incident reporting rates and reduces the harmful practise of defensive medicine; 2) retain practitioner accountability and the related patient safety advantages; and 3) generate compensation claims data that can assist in better risk management. By drawing on evidence from existing NFCSs (in New Zealand, Scandinavia, and the US), the thesis illustrates that the liability environment is only one factor affecting reporting behaviour and defensive practises, while real accountability lies outside of the scope of legal liability. The major potential of NFCSs lie in the lessons that can be learnt from the effective use of claims data, which provides a broad, detailed, and centralised information source that will be invaluable to the patient safety cause.

Biography

Rumesh is a final year Bachelor of Science and Laws student, whose background in chemistry and immunology sparked his interest in health law. He is looking forward to a leisurely summer of busking and travel, before commencing as a law graduate in 2017.

SIMONE GOULDSupervisor: Dr Sharon Rodrick

Too Much, Too Little or Just Right: An Analysis of Journalist Privilege in Victoria

Convictions, fines and potential imprisonment. These are some of the consequences Australian journalists have faced for refusing to disclose anonymous sources’ identity when compelled by a court. A fundamental canon of journalism is to respect promises of confidentiality in all circumstances. However, until recently this has merely been a standard of the profession with no legal force or recognition. Consequently, there has been ongoing tension between journalists’ ethical obligation to protect a confidential source’s identity and the court’s desire to examine all relevant and admissible evidence. To address these conflicting interests a journalist privilege was inserted into the Evidence Act 2008 (Vic) by virtue of Division 1C. As a result, there is now a rebuttable presumption that journalists, and their employers, are not compellable to reveal the identity of a confidential source unless the court believes it is in the interests of justice to do so.

This thesis examines the extent to which the Victorian privilege achieves its aim of providing journalists with greater protection. This involves assessing whether the current privilege extends to people working in new media, such as blogs, or whether it is restricted to traditional mediums. The court has the power to influence the level of protection afforded by the privilege as it determines whether the presumption has been rebutted and disclosure is necessary. Consequently, this thesis considers recent case law, in particular the decision of Madafferi v The Age, to determine whether the court is willing to recognise a strong public interest in journalism.

Biography

Simone is a final year Arts/Law student with a double major in French and Journalism. A highlight of her degree was studying abroad for a semester at the University of Exeter in the UK. She is looking forward to travelling before starting as a graduate with Arnold Bloch Leibler in 2017.


YANNIS GOUTZAMANISSupervisor: Associate Professor John Duns

Getting Economics into the Courtroom: A Court-Appointed Expert

Large and complex competition law matters often involve expert economic evidence. As economics and econometrics have become more sophisticated in their techniques and methodologies so to has expert evidence. This has given rise to ongoing debate concerning the role of expert economic evidence in competition law matters and how it is best received by courts and tribunals. This thesis contributes to this debate by analysing whether adopting a court-appointed expert approach would be superior to the current process of handling expert economic evidence. As part of this analysis four major problems with the current adversarial methods are identified: (i) the potential for bias; (ii) the non-expert judge; (iii) the difficulty of integrating economic theory and econometric analysis with the judicial method; and (iv) time and cost inefficiencies. This thesis then proposes various models for how a court-appointed expert would work in practice and discusses how each model would overcome the deficiencies identified in the adversarial methods courts use today. Objections to the court-appointed expert approach will be also examined. Ultimately however, the conclusion reached by this thesis is that courts should make use of court-appointed experts as any associated issues are surmountable and outweighed by the benefits.

Biography

Yannis is a final year Commerce(Finance)/Law student. His interest in competition law stems from the fact that it represents an intersection between two of his passions: law and economics. Highlights of Yannis’ degree include competing in various moot, model UN and management consulting competitions. Yannis will be commencing as a graduate with King & Wood Mallesons in 2017.

MADELEINE HALESupervisor: Dr Colin Campbell

Autonomy as a Policy Factor in the Recognition of a Duty of Care on Commercial Alcohol Servers

Australians are amongst the largest alcohol consumers in the world. As a result, Australia has disturbingly high levels of alcohol fuelled injury and violence. Over-serving and non-compliant commercial alcohol servers play a significant role in the creation of environments where such injury may flourish. As such, it is imperative that commercial alcohol servers are held to a higher standard of care towards intoxicated patrons at risk.

Despite this, the High Court has shied away from recognising a general duty of care on commercial alcohol servers towards intoxicated patrons. Instead, the High Court has constructed intoxicated patrons as creators of their own misfortune by emphasising their personal autonomy. In so doing, the court has overlooked the responsibility commercial alcohol servers must also bear for the welfare of their patrons.

In this thesis I will argue that although autonomy is an undeniably important value of the common law, it must be balanced with other equally, if not more important, policy considerations. In addition, this potentially misplaced focus on autonomy threatens to undermine the vital deterrent and loss-sharing roles of torts law in society. By contrast, imposing tortious liability on commercial alcohol servers could see a much-needed cultural shift in bars, pubs and hotels around the country.

Biography

Madeleine is a final year Arts/Law student. She has participated in the Monash Prato Program as well as an exchange to Sciences Po in Paris where she completed her Arts major in the French language whilst studying international law. Alongside her studies, Madeleine volunteers as a paralegal at Refugee Legal, has performed regularly with the Chamber Strings of Melbourne and composes her own music. She looks forward to starting at Herbert Smith Freehills in 2017.

JOSIE LIUSupervisor: Professor Stephen Barkoczy

Taxing Digital Enterprises: Web Servers as Permanent Establishments under International Tax Treaties

The Permanent Establishment Article appears in most bilateral tax treaties. Its purpose is to define the threshold for the level of economic presence a foreign company would need to have in a State in order to give rise to taxing rights by that State. Its purpose is to properly assign taxing rights to jurisdictions, whilst encouraging cross-border trade. The Article as it usually appears in treaties is generally adopted from the OECD’s Model Tax Convention, first drafted and published in 1963.

While business practices have adapted rapidly in the digital age, the development of international tax law has perhaps lagged behind. Some ambiguity has arisen about the tax status of the components which make up an internet-based enterprise. The OECD has given some guidance in the interpretation of this Article through a number of commentaries to their Model Tax Convention. However, upon closer examination, this guidance seems to demonstrate a misalignment between the objectives of the Article and the current approaches.

This thesis examines the rules and guidance as they apply to web servers in particular, to assess whether the OECD has been able to effectively pursue its objectives with regards to the Article. By exploring the theoretical underpinnings of the Article, analysing the accompanying commentaries relating to web servers, and surveying international judicial and academic opinion, the thesis ultimately finds that the current guidance on the Article by the OECD demonstrates a misunderstanding either of the realities of e-commerce or of the Article itself.

Biography

Josie is a fifth year Commerce(Economics) /Law student. After graduation, she is looking forward to travelling through North and South America for the summer before starting as an Associate Consultant at Bain & Company in 2017.


NIKITA MATCHADOSupervisor: Associate Professor Normann Witzleb

Regulating the Indexing of Society’s Permanent Memory Drive: Should the European Union’s Right to be Forgotten be Adopted in Australia?

What happens if a socially upstanding individual uncharacteristically transgresses a social more? Before the advent of the Internet, her indiscretion may have been temporarily denounced, but would eventually be all but forgotten. However the Internet has equipped society with a permanent memory drive, allowing personal information to be instantly recalled regardless of how irrelevant it may be to the contemporary context. Search engine operators such as Google are indexing this personal information, making reputation-damaging content easily accessible to the public. Legal regulation is therefore desirable to give the individual some control over their online presence. With its current privacy law framework of limited use, Australia may need to look to the European Union for guidance. Europe’s ‘rights-based’ approach to privacy allowed it to derive a ‘Right to be Forgotten,’ enabling an individual to request search engine operators to de-list personal information in search function results where it is irrelevant to the present context. The right is not absolute; regard must be had to freedom of expression and general public interest in the information. Despite its perceived benefits, adopting this European-style approach in Australia is problematic. Australia’s privacy model does not accommodate the fundamental human rights that gave rise to the Right to be Forgotten in Europe, in particular the right to private life. A more moderate solution, such as the reordering rather than absolute de-listing of information from search engine results, may be more in line with Australia’s approach to privacy, where individual rights remain subordinate to overall social benefits.

Biography

Despite having to repeat kindergarten in her early years, Nikita is now in her final year of an Arts/Law degree. The highlight of her university experience was representing Monash at the Vis Arbitration Moot 2015 in Hong Kong, Budapest and Vienna. She is looking forward to travelling in Asia and Europe over summer before commencing as a graduate with Baker & McKenzie next year.

ERIN MOLONYSupervisor: Dr Maria O’Sullivan

Royal Commissions and the Rule Against Bias

With the increasing prevalence of Royal Commissions in Australia, it is paramount that Commissioners are perceived to be independent and impartial if their findings are to be accepted by the Australian public. Natural justice requires that a Commissioner be disqualified if the fair-minded lay observer might reasonably apprehend that the Commissioner might not bring an impartial mind to the resolution of the questions which the Commission is required to decide. The way in which Commissioners apply the apprehended bias test has recently come under close public scrutiny in Australia. This paper considers the adequacy of the current test by looking at its application in the Royal Commission into the Building and Construction Industry, the Queensland Public Hospitals Commission of Inquiry and the Royal Commission into Trade Union Governance and Corruption. It examines the appropriateness of the current self- disqualification procedure, the unrealistic construction of the fair-minded lay observer, and the emphasis placed on some Commissioners’ past judicial experience. It argues that the current restrictive application of the test fails to accurately determine when members of the general public apprehend bias and advocates for a series of reforms to enhance the institutional integrity of Royal Commissions and the extent to which the general public accepts their findings and recommendations.

Biography

Erin is in her fifth year of her Arts/Law degree, majoring in Politics. Some of the highlights of her degree include studying at Utrecht University in the Netherlands and undertaking an internship at the National Commission for the Fight Against Genocide in Rwanda. She plans to graduate in June 2017.

EMMA MOORESupervisor: Professor Jeffrey Waincymer

China’s Unruly Horse: Examining a Narrow Enforcement Approach to the Public Policy Exception

Article V(2)(b) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “public policy exception”) epitomises tensions between the push for international commercial freedoms and maintaining protectionist national domains. An evolving pro-enforcement approach has gradually emerged despite continuing controversy over the true scope of public policy.

For China, the report of Senior Judge Gao Xiaoli of the Supreme People’s Court of China to the International Bar Association’s Sub-committee on Recognition and Enforcement of Awards catalogues China’s now narrow approach to public policy as a ground for refusal of enforcement. Yet an absence of judicial reasoning in cited SPC opinions leads to a lack of helpful guidance, especially when coupled with comparative law considerations such as infrastructure deficiencies and the impact of socio-legal factors. To combat this, a nuanced consideration of China’s judicial approach is required.

In facing protectionist and cultural tensions, the face of China’s future enforcement approach requires a synthesis of considering judicial reform, political agenda and broader growth commonly featured within the literature. Considering China’s promising international integration thus far, Senior Judge Gao’s report presents a crucial starting point for examining China’s place in the convergence toward an internationally consistent state of affairs for the infamous unruly horse of the public policy exception.

Biography

Emma is a final year Commerce/Law student, with a Diploma in Chinese language. Her study at the University of Hong Kong first sparked her interest in international arbitration within the Asia-Pacific. She is currently completing her final semester of study in economics at Peking University and will join Allens as a graduate in 2017.


RACHEL MORRISSupervisor: Professor Matthew Groves

When the Attacker becomes the Victim: The Forfeiture Rule, Edwards and its Implications for Battered Women

In Australia, two in five homicide victims are killed by a family member. When a person dies, their property passes to their loved ones, either under a will or via the intestacy provisions. However, when the person in line to inherit is also their killer, the forfeiture rule intervenes to stop them benefitting from their crime. Instead, the property will pass to the next in line. In the past, the rule had been applied strictly, with no exceptions. This has resulted in victims of domestic abuse who killed their partners in situations of diminished responsibility being denied their share of the estate, even where they have received a reduced sentence or an acquittal in the criminal courts.

This changed in March 2016 when the Victorian Supreme Court in Edwards v Edwards overturned the leading case in this area to stop the rule from applying in cases where the criminal culpability of the offender is very low. This thesis seeks to explore the implications of this new judgment, including the potential for ambiguity in the assessment of culpability. It then concludes with suggestions for reforms to the law in order to avoid unjust results, for both the victim and the offender.

Biography

Rachel is a final-year Arts/Law student with a double major in Japanese and German language studies. She is looking forward to completing her law degree in November and travelling the world shortly thereafter. She hopes to one day practice in Japan.

CAITLIN MURPHYSupervisor: Dr Richard Joyce

More than Minimalism: Critiquing the Minimalist approach as a way of addressing the Political Ramifications of Human Rights

Within the context of much disagreement over the legitimate content of human rights, this paper examines whether the nature of human rights frameworks acts to prevent more substantive or far-reaching justice projects from having the effect they otherwise could. It principally critiques human rights minimalism as expressed by Samuel Moyn in The Last Utopia as a way to facilitate broader justice projects whilst also maintaining the political protection of human rights, arguing that this approach reinforces the consequences it seeks to avoid.

Biography

Caitlin is in her final year of Arts/Law where she also studied Spanish and Latin American history and poetry writing.

ESTELLE PETRIESupervisor: Dr Joanna Kyriakakis

The Business of Women’s Rights: The intersection of the Convention on the Elimination of Discrimination against Women and the UN Guiding Principles on Business and Human Rights

Global trade, international supply chains and the rise of the private sector have increased the potential for business actors to negatively affect women’s rights. However, addressing the impact of businesses using international human rights law is a continuing challenge. In an effort to strengthen existing human rights framework in the context of business activities, the UN Human Rights Council endorsed the Guiding Principles on Business and Human Rights (‘the Guiding Principles’) in 2011, with wide support from business,governments and some civil society organisations. This thesis argues that the Guiding Principles, which operationalise a ‘Protect, Respect and Remedy’ Framework, should be understood primarily as a foundation and platform for further measures aimed at addressing the human rights impacts of private commercial actors. Specifically, it examines the potential intersection between the jurisprudence of the Committee for the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Guiding Principles. This paper examines key areas in which a General Recommendation by the CEDAW Committee could provide expert guidance to states and businesses in light of the Guiding Principles and hence further the protection of women’s rights in business contexts. It does so by using case studies that demonstrate some of the ways in which business can impact women’s rights in a global economy and drawing on the example of the Committee for the Convention on the Rights of the Child’s General Comment 16 regarding the impact of the business sector on children’s rights.

Biography

Estelle is a penultimate year Arts/Law student and currently works at the Women’s Legal Service Victoria. The highlight of her law degree came in January 2016 when she undertook a Castan Centre Global Internship in Kuala Lumpur with a women’s rights organisation, and had the opportunity to travel to Geneva for a UN treaty body session. Estelle is looking forward to a summer of swimming and catching up on fiction reading.


MADELEINE REILLYSupervisor: Associate Professor Janice Richardson

Nothing to Hide? Why we should still Fear Metadata Retention

With the perceived threat of terrorism growing, governments are under mounting pressure to do more to detect and prevent terrorist threats. The 2015 metadata retention laws were sold to Australians as a critical tool designed to address these very concerns.

However, this “collect it all” approach to metadata has proven to be a flawed method of preventing attacks. Instead, the extremely revealing information that is collected can be used by government agencies for a much wider range of purposes.

Compared to other equivalent jurisdictions, the reach of Australia’s metadata retention laws is immense. With no real protection of the right to privacy from government, there was no legal avenue to challenge the law’s introduction.

This thesis explores the significant impact that metadata retention has on the right to privacy. Although individual pieces of metadata may seem innocuous, with modern data analytics your metadata can reveal incredibly personal information. More broadly, this poses a threat to the voices of dissent in society, in particular for journalists and whistle-blowers.

Although privacy is not an absolute right, too often it is misunderstood and undervalued by our society. In a climate of fear, Governments can easily persuade us to sacrifice privacy for the sake of national security, with the promise that they will keep us safe.

Biography

Madeleine is a sixth and final year Arts/ Law student. An intolerable foodie, highlights of Madeleine’s time at Monash include eating too much pasta while studying in Prato and complaining that there’s no good sushi on campus in Clayton. She is looking forward to celebrating the end of her degree by travelling around parts of Asia.

MADELEINE SALINGERSupervisors: Professor Jeffrey Goldsworthy & Dr Lisa Burton-Crawford

Built on Sand: The Shaky Foundations of the Implied Freedom following McCloy v New South Wales

Since 1992, the High Court of Australia has recognised that the Constitution implicitly protects political communication from legislative interference in order to maintain the constitutionally enshrined system of representative government. There has been judicial consensus since Lange v Australian Broadcasting Corporation that this implied freedom is non-absolute: it may be burdened where the law is appropriate and adapted to achieving a legitimate end. In late 2015, a majority of the High Court in McCloy v New South Wales adopted a tripartite proportionality test to assess this question. This test was criticised by Justice Gageler on the basis that it loses sight of the purpose of the implied freedom.

This thesis queries whether proportionality testing can be justified in light of Justice Gageler’s criticism. It examines the purpose of the implied freedom and the basis upon which it is considered non-absolute. It argues that this analysis suggests that only those communications necessary to give effect to representative government are protected by the freedom, but that the protection of these communications is absolute as there is no sound justification for any legislative interference with such communications. This thesis then explores two implications of this argument: first, it is argued that proportionality testing cannot be justified. Second, it is argued that Justice Gageler’s criticism of the McCloy test exposes more profound questions about the implied freedom as understood since Lange, and suggests that it may be more appropriate to understand the freedom as being narrow in scope, although absolute in nature.

Biography

Madeleine is a fifth year Arts/Law student who will finish her studies at Monash at the end of 2016. She has a strong interest in constitutional and human rights law. She is currently working as an associate to The Hon. Justice Michael McDonald at the Supreme Court of Victoria.

THOMAS SMALLEYSupervisor: Associate Professor John Duns

Australia: No Longer a Market Girt by Sea? A Critical Examination of the Market Definition Process in Australia following ACCC v PT Garuda Indonesia

For almost forty years since the Competition and Consumer Act’s earliest inception, the process of defining the geographical market and the phrase “a market means amarket in Australia” in s 4E stood largely unapplied and untested. The arrival of the global air cargo cartel investigation, which culminated in the Full Court of the Federal Court’s decision in ACCC v PT Garuda Indonesia (‘Garuda’), transformed this by bringing it to the centre of a series of actions seeking over $100 million in pecuniary penalties.

This thesis will begin by examining the process of determining the geographical market prior to the decision. It will then argue that the new formula developed by the majority in Garuda was a watershed moment in Australian competition law in two respects. First, by focusing on a broad set of factors in determining whether there was a market in Australia, rather than solely the location of the geographical market as defined by substitution, it marked a departure from the QCMA paradigm. Second, by characterising a market geographically located outside of Australia as part of “a market in Australia”, it significantly expanded the extraterritorial application of the Act.

PT Garuda Indonesia has filed a special application with the High Court of Australia. It will be argued in this thesis that the Full Court’s decision ought not be overturned because this expansion was indeed justified as it is consistent with a purposive construction of the Act. Furthermore, the expansion despite raising some comity concerns, is constitutional and consistent with international law. This thesis concludes the impact of the new formula ought to be considered carefully by law-makers, legal advisors, businesses and the-like.

Biography

Tom is a fifth year Arts (Spanish)/Law student whose interest in competition law stems from his academically unexplored curiosity for economics after making a flip of the coin decision to study Arts instead of Commerce. Highlights of Tom’s degree thus far have included studying in Mexico and Shanghai, and representing Monash at the Vis Moot. He has recently made the decision to complete the last year of his degree part-time over two years and will graduate in mid-2018.


ELIZABETH TANSupervisor: Professor Justin Malbon

A Fair Go for Fan Fiction: Australian Copyright Quandaries and Proposals for Reform

The global success of E L James’ Fifty Shades of Grey, a novel inspired by Twilight fan fiction, catapulted fan fiction into mainstream culture and spurred new interest in the literary phenomenon that has long-existed since the 1960s. Fan fiction is inherently at risk of falling foul of copyright law. The legality of such works, in many instances, is uncertain. Legal uncertainty is compounded by the lack of legal precedent regarding fan fiction and Australia’s fixed fair dealing exceptions. The uncertainty lingers in the minds of fan fiction writers; and has the potential to chill creativity and the production of fan fiction works, which have significant social, literary and cultural value. As such, fan fiction is an example of the tension that exists in copyright law between protecting the copyright owner’s rights and allowing other creators to freely create and develop new works. Moreover, it is a symptom of the wider challenges copyright law faces in the digital age, with pervasive ‘remix’ culture and the production of user-generated content. This thesis examines the legality of fan fiction through the use of a new analytical framework that categorises different types of fan fiction. Using three case studies, the thesis concludes that Australian copyright law fails to duly regard the largely non-commercial, creative and transformative nature of fan fiction. Finally, the thesis recommends reform; through the adoption of the US-style fair use defence, or in the alternative, a defence of homage/pastiche to enable greater fairness for fan fiction writers and creators.

Biography

Elizabeth is a sixth and final year Science (Physiology)/Law student. The highlight of her degree was going on exchange to the US where she took legal theory class, conducted an ultrasound on a pig, and played on the racquetball team. In the future, Elizabeth looks forward to pursuing her keen interests in intellectual property law and medical malpractice law.

REBECCA TORSELLOSupervisor: Dr Sharon Rodrick

Growing up Famous: Celebrity Children and their Right to Privacy

The death of Princess Diana in 1997 devastated the world, and called into question the actions of the media in pursuit of the perfect “snap.” Despite this, the fascination into the world of celebrities and their children has only increased with the advent of the social media and smart phone technology. The prevalence of media and tabloid gossip around the world has led to the rapid growth of privacy laws. In the United Kingdom, tort law was adapted to encompass the protection of private life. Other European countries have preferred to create image rights, granting individuals control over the use of their image. This thesis explores the effect of these laws on celebrities, and their children, and then provides a comparative analysis of the domestic approaches taken by those who are member states under the Council of Europe. Ultimately, it can be shown that privacy rights in relation to children are greater than those afforded to adults; however, the case law is inconsistent and does not provide adequate guidelines for future courts and the media to adhere to.

Biography

Rebecca is a final year Law/Arts student with a major in Journalism. She has utilised the flexible university timetable to travel the world during her studies; including a semester at the Prato campus. The highlights of her degree have been numerous stints on the LSS and watching the quality of food offerings on campus increase over the years.

JONATHAN UNGARSupervisor: Dr Karen Wheelwright

Internships: A Need for Protection in Australian Employment Law

Internships seem to be common practice in Australia and throughout the world for a huge number of professions. They have become a right of way foryoung people and are seen as a necessary pre-cursor to paid employment. Despite the fact that internships have become so widespread they have received very little legislative and regulatory attention and have therefore been allowed to operate in a manner that exploits the work of many young people. Unpaid and underpaid internships have proven to be an exception to the otherwise stringent and well-defined employment law framework in Australia today. Despite the rampant exploitation that is clearly evident, internships have not been subject to much academic or governmental analysis at all. Similar conclusions can be reached when analysing how internships are treated throughout the world. This thesis will analyse how internships became an entrenched practice within so many professional spheres and will look at global approaches taken to protect interns. Ultimately, countries are preaching that interns deserve greater protection but effective solutions have been few and far between. This thesis will draw on past failures in Australia and abroad in attempting to regulate internships and will make a number of suggestions as to how Australia can systematically protect interns.

Biography

Jonathan is a final year arts/law student who has thoroughly enjoyed his six years at Monash University. Jonathan is always open to adventure and his education has enabled him to live in such places as Prato and Rwanda. He is looking forward to practicing as a lawyer next year.


CORRINA VIRTANENSupervisor: Dr Colin Campbell

The Public-Private Divide: Jurisdiction to conduct Judicial Review of Decisions of the Financial Ombudsman Service

The divide between public and private law remains a current issue in Australian administrative law, with the High Court yet to definitively rule on whether private bodies exercising public functions can be subject to judicial review. Significant developments have been made in the UK following the decision in R v Panel on Take-overs and Mergers; Ex parte Datafin, which endorsed a ‘public functions’ test to determine amenability to judicial review.

This thesis focuses on jurisdiction to conduct judicial review of decisions made by private bodies at common law, and uses the Financial Ombudsman Service as a case study to explore these issues. The Financial Ombudsman Service is a private company limited by guarantee and plays a key dispute resolution and regulatory role within the financial services sector.

This thesis investigates whether, pursuant to current case law, Datafin applies in Australia and whether determinations made by the Financial Ombudsman Service fall within its scope. A critical analysis of whether the operation of contract and private law principles can displace judicial review is then conducted. Even if judicial review is displaced by the operation of contractual arrangements, there are exceptions which have been developed in the UK, that have the potential to bring a decision back within the scope of judicial review.

It is ultimately concluded that a functional approach to judicial review should be adopted in Australia in order to adapt to the changing nature of the exercise of public power.

BiographyCorrina is a final year Arts (Politics)/Law student. The highlight of her degree was studying in Prato in first semester this year. She looks forward to spending time traveling over summer before commencing as a graduate at King & Wood Mallesons in 2017.

STEFAN VUJACICSupervisor: Associate Professor John Duns

Sink, Swim or Scuttle: Is Providing Australian Company Directors with an Insolvent Trading ‘Safe Harbour’ an Appropriate Reform?

Australia is said to have the strictest insolvent trading regime in the world. Directors who engage in insolvent trading are exposed to the prospect of personal liability, disqualification, civil penalties and criminal prosecution. Critics suggest that, despite their stringency, these provisions are too broad and uncertain in scope and operation and, accordingly, suffer from a fundamental discord with the often fluid realities of commercial decision -making. This apparent overreach is said to lead to a myriad of undesirable outcomes including, amongst other things, the premature invocation of formal insolvency processes which, in turn, invites directors to scuttle what may otherwise be salvageable commercial enterprises.

Accordingly, calls for the relaxation of Australia’s insolvent trading regime have become increasingly prolific, particularly over the last decade. In response, on 29 April 2016, as part of its National Science and Innovation Agenda, the Federal Government issued a Proposals Paper which sets out, amongst other things, two alternate models for the reform of the insolvent trading provisions.

This thesis outlines the operation of the insolvent trading provisions and related mechanisms, examines the justifications for reform and tests the appropriateness of the proposed reforms. In doing so, it explores the mechanics of Australia’s insolvency framework by reference to the conflicting objectives that it attempts to reconcile, including, particularly, those of protecting creditors’ interests and corporate rescue. Ultimately, this thesis finds that while reform is justified, the proposed models suffer from significant shortcomings. Accordingly, a modified ‘safe harbour’ model is suggested.

Biography

Stefan is a penultimate year Arts/Law student at Monash. He has revelled in exchange programs, having spent time in both Shang-hai and Prato, has enjoyed participating in various legal competitions and is grateful to have been able to undertake the Victorian Parliamentary Internship as part of his Politics major. He looks forward to travelling for the second half of next year before (hopefully) commencing his indentured servitude in the practice of corporate law

AILSA WALLACESupervisor: Dr Janina Boughey

The Distinction between Regulatory and Judicial Powers

Regulatory bodies can exercise a wide range of statutory powers. In many cases the powers of regulatory bodies look and operate like those exercised by courts and have the capacity to influence others in a significant way. Australian courts have justified the conferral of such powers on regulatory bodies by determining that the powers do not involve the exercise of judicial power. In doing so, courts have concluded that many regulatory powers do not exhibit exclusively judicial features. In this thesis I consider the primary features of judicial power: (i) the making of a binding decision, and (ii) the determination of a legal controversy about existing rights. I apply these to examples of federal regulatory powers and argue that, in practice, regulatory powers can have elements of both enforceability and the adjudication of legal controversies. Thus I argue that the interpretation that many regulatory powers do not exhibit features of judicial power is not always clear, and that the use of the interpretation as a basis for justifying the validity of regulatory powers is problematic.

Biography

Ailsa is in her final year of Arts (Ancient History)/Law. At the end of the year, she is looking forward to travelling throughout Europe before starting as a graduate at King & Wood Mallesons in 2017.


ADAM ZIMBLERSupervisor: Associate Professor Patrick Emerton

National (In)Security: Combatting Domestic Rights Abuses with Cosmopolitan Visions of Human Rights

Writing in 1951 amidst the shadows of one of the greatest atrocities mankind has ever experienced, Hannah Arendt claimed that despite human rights’ supposed universality, “it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them.” Since then 65 years have passed. Though the institutional structures relating to human rights under international law have radically progressed, we find ourselves still grappling with the same fundamental dilemma of how to ensure adequate security against egregious domestic human rights violations. Drawing on the experience of the Rohingya of Myanmar, who have been described by Amnesty International as “the world’s least wanted people”, this thesis will explore the current nation-state system which links the provision of human rights to national status. It will do so to argue that individual nation -states are unable to adequately protect the human rights of their inhabitants. On this basis it will also critique the international legal order that limits nation-states’ responsibilities for human rights to “within territory and subject to jurisdiction.” This thesis will contend that a broader conceptualisation is needed which positions individuals as rights-bearers possessive of a capacity to claim duties from nation-states and non-state actors independent of jurisdictional nexus. Such a reconceptualisation may be found in Ulrich Beck’s theory of Cosmopolitanism, and this thesis will examine the strengths of a cosmopolitan approach to human rights. It will also look to the emerging Responsibility to Protect as an example of a practical manifestation of this normative shift.

Biography

Adam is in the final semester of his Arts/Law double degree, where he majored in history, anthropology and international law. He has greatly enjoyed his time at Monash, which saw him being sent to the UK, Singapore, New York, Sydney and Rome under the guise of various academic commitments. His next big adventure will entail spending his birthday in Oregon watching the catastrophic US election results unfold, before rejoining society to take his place as a functioning adult.

ACKNOWLEDGEMENTS

Honours Convenor Professor Graeme Hodge

Honours Administrator Jayne Champion

Conference Organising Committee Thomas Smalley, Stefan Vujacic and Adam Zimbler

Marketing Kate Daley

Sponsor Arnold Bloch Leibler www.abl.com.au

Disclaimer: Monash University reserves the right to alter information, procedures, fees and regulations contained in this document. Please check the Monash University website for updates (www.monash. edu). All information re ects prescriptions, policy and practice in force at time of publication. Published September 2016.

16P-1394. September 2016. Produced by Strategic Marketing and Communications, Monash University. CRICOS provider: Monash University 00008C, Monash College Pty Ltd 01857J

monash.edu/law

monash law · 2 / monash law book of abstracts program – monday 10th october 2016 8.30am...

Documents