Welcome to Scholarship for the Legal Community – our curated selection of research summaries of recently published academic writing from local and international journals.
This resource aims to foster greater engagement between the judiciary, the academy, and the legal profession by enabling a shared experience of the latest pieces of doctrinal research in significant and emerging areas of the law.
Many of the articles on this page are freely available and are easily accessed by using the links. Articles that require a subscription will take you to the Law Library of Victoria website. Law Library account holders will be able to view the articles via the links on the Law Library page.
The Contractual Impact of COVID-19 on Corporate and Financial Transactions
Andrew Godwin (2020), 48 Australian Business Law Review 116
This article provides a high-level overview of the contractual impact of COVID-19 on corporate and financial transactions in three areas: material adverse change clauses, force majeure clauses, and the doctrine of frustration. The analysis highlights both the complexities of these concepts and also the extent to which their operation is subject to the specific circumstances, even in the context of the COVID-19 pandemic.
The Challenges of Navigating the COVID-19 Pandemic for Australia's Franchise Sector
Jenny Buchan and Rob Nicholls (2020), 48 Australian Business Law Review 126
This article reviews franchising through the lenses of force majeure and frustration and considers how the courts might interpret responses to COVID-19 in the light of the good faith obligation under the Franchising Code of Conduct. It also canvases federal and State regulatory responses in the context of franchising. The article concludes that franchisors will need to depart from a one-size-fits-all response to a more bespoke approach on this occasion.
Chains, Coins and Contract Law: The Validity and Enforceability of Smart Contracts
Buwaneka Arachchi (2020), 47 Australian Business Law Review 40
This article considers the validity and enforceability of smart contracts under Australian contract law. Smart contracts are agreements, expressed at least partially in computer code, that utilise distributed ledger technologies such as blockchain to interpret, perform and enforce their terms without human intervention. Smart contracts have already been used in the structure of conditional payments, financial derivatives, and investment mechanisms, with scope for much broader application in the near-term. The recent emergence of smart contracts and absence of legislative or judicial intervention has left uncertainty as to their legal validity and position relative to conventional contracts. After outlining the technology's characterisation and operation, this article turns to the question of whether smart contracts are capable of meeting the doctrinal requirements for an enforceable contract in Australian law. In finding that they are, it supports their continued usage and adoption.
Statute and Theories of Vicarious Liability
Joachim Dietrich and Iain Field (2020), 43(2) Melbourne University Law Review 515
This article considers the master’s tort and servant’s tort theories.
The Evolution from Strict Liability to Negligence: Implications for the Tort of Private Nuisance
Anthony Gray (2020), 94(9) Australian Law Journal 699
This article considers whether the tort of private nuisance might now be subsumed into the law of negligence, as has occurred with other torts that formerly had a separate identity.
An Empirical Study of Exemplary Damages in Australia
Felicity Maher (2020), 43(2) Melbourne University Law Review 694
A UK study suggested exemplary damages in Australia were “extinct” – this study shows they are “alive and well”.
Transmission of HIV and the Criminal Law: Examining the Impact of Pre-Exposure Prophylaxis and Treatment-as Prevention
David J Carter (2020), 43(3) Melbourne University Law Review 937
This article examines the impact of two major bio-tech advances in the prevention of HIV transmission on criminal offences that apply to HIV transmission-related events, and argues that these new forms of HIV transmission prevention should radically reduce, and potentially eliminate, the incidence of HIV transmission-related criminal prosecutions for unintentional transmission
Climate Activism and the Extraordinary Emergency Defence
Dr Nicole Rogers (2020), 94 Australian Law Journal 217
Climate activists have attempted to raise the defence of necessity or its statutory equivalent in their trials for over a decade. In Queensland, the codified defence is framed within the context of a sudden or extraordinary emergency. The first attempt by a climate activist to invoke the extraordinary emergency defence in Queensland occurred in May 2019, following a deluge of official declarations of climate emergency by governments at all levels and by institutions. Although this attempt failed, two climate activists will again raise the defence at their trial in March 2020. This article explores the parameters of the defence, the political context in which it is invoked, and the vexed question of what constitutes reasonable conduct on the part of individuals in the absence of an effective, concerted, global response to the climate emergency.
Offenders Risking Deportation Deserve a Sentencing Discount but the Reduction Should Be Provisional
Mirko Bagaric, Theo Alexander, and Brienna Bagaric (2020), 43(2) Melbourne University Law Review 423
This article argues that deportation at the expiration of an offender’s sentence is a hardship and hence should mitigate the sentence imposed by the court, and proposes that the discounted portion of the sentence could be rescinded in circumstances where the offender is not ultimately deported at the completion of the sentence (as occurs with another speculative mitigating factor, namely a promise by offenders to assist authorities).
An Argument for Recognising Childhood Sexual Abuse and Physical Abuse as a Mitigating Factor in Sentencing
Mirko Bagaric and Gabrielle Wolf (2020), Australian Bar Review 227
Empirical research has confirmed that there can be an extremely strong connection between the experience of childhood sexual abuse and physical abuse and subsequent criminal offending, especially in the case of female and Indigenous offenders. This article argues that it is desirable that an offender’s experience of childhood sexual abuse and/or physical abuse is recognised as a discrete mitigating consideration, quite apart from any applicable Bugmy principles, as it can diminish his or her moral culpability.
Regulating Forensic Science and Medicine Evidence at Trial: It's Time for a Wall, a Gate and Some Gatekeeping
Gary Edmond (2020), 94 Australian Law Journal 427
This article provides a brief review of the admissibility standards governing forensic science and medicine evidence in Australian criminal proceedings. Drawing upon scientific research and reviewing a decade of empirical study and commentary, it explains the need for a formal reliability standard, attentiveness to scientific research and advice, and a willingness to exclude some of the expert opinion evidence currently adduced by prosecutors and admitted at trial.
Equity, Trusts and Estates
Unjust Enrichment in Australia: What Is(n't) It? Implications for Legal Reasoning and Practice
Kit Barker (2020), 43(3) Melbourne University Law Review 903
This article articulates and distinguishes between five different roles that unjust enrichment might play in modern legal reasoning in Australia, providing a clearer picture of both what it is and — equally importantly — what it is not. A clearer view of the scope and function of the concept in legal reasoning will lead, it suggests, to a more confident acceptance, and coherent use, of the idea of unjust enrichment by courts. It also has key implications for the pleading of restitutionary claims.