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.
View the editorial guidelines for this resource.
Purposive contract interpretation and the High Court (Law Library login required)
Ryan Catterwell (2020), 49 Australian Bar Review 54
This article identifies five principles of purposive contract interpretation to make the process more efficient, reliable, and predictable:
- A linguistic interpretation prevails against a purposive construction if the meaning of the words is a better indicator of intention than the purposive considerations.
- A purposive construction prevails against a linguistic interpretation if the purposive considerations are a better indicator of intention than the meaning of the words.
- A purposive construction is more persuasive if the purposive considerations are grounded in the text rather than established purely as a matter of background.
- A linguistic interpretation usually prevails against a purposive construction if the linguistic interpretation can be explained as a matter of contractual purpose.
- If rival textual or linguistic considerations are evenly matched, contractual purpose is often determinative.
The Contractual Impact of COVID-19 on Corporate and Financial Transactions (Law Library login required)
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 (Law Library login required)
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 (Law Library login required)
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.
Corporations Act and ASIC Act
An Analysis of the Use of Stepping Stones Liability Against Company Directors and Officers (Law Library login required)
Ian Ramsay and Miranda Webster (2021), 50 Australian Bar Review 168
This article considers the operation of the stepping stones approach to directors’ liability and identifies controversies and concerns about the boundaries of this form of liability. Key findings from a review of recent cases include: 1) ASIC was the plaintiff in all but one case and has had a very high success rate. 2) Stepping stones liability claims were made in relation to more private than public companies. 3) The most commonly used provision as a ‘first stepping stone’ is s 1041H of the Corporations Act on misleading or deceptive conduct. 4) Stepping stones liability arguments are most commonly used against people in executive positions — but stepping stones liability extends to any individual responsible for particular activities of the company, where a failure to provide the appropriate standard of care and diligence in exercising that responsibility leads to the company contravening the Corporations Act.
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 (Law Library login required)
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”.
Suppression Orders in Criminal Trials: Still Necessary in the Digital Era (Law Library login required)
Marco Lopresti and Andrew Burke (2021), 45(1) Criminal Law Journal 18
This article rebuts the argument that the digital era has rendered suppression orders futile and therefore unnecessary. It argues that suppression orders are not required to eliminate a risk of prejudice – they may simply diminish the risk. Accordingly, the limited reach of suppression orders does not prima facie render them unnecessary. Further, there are signs that the law is evolving to meet the challenges of reportage in digital media through suppression order enforcement treaties and social media regulation. This evolution is consistent with the historical tendency of Australian courts to endeavour to protect a fair trial and the doctrinal subordination of open justice to a fair trial.
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 (Law Library login required)
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.
Indigenous over-incarceration and individualised justice in light of Bugmy v The Queen (NEW) (Law Library login required)
Guy C Charlton (2021), 50 Australian Bar Review 427
This article criticises the emphasis in Bugmy on individualised factors that seek to address indigeneity in sentencing in preference to a broader approach that takes judicial notice of systemic factors that may impact the determination of an appropriate sentence – as occurs in NZ and Canada.
This article argues that the requirement of formal equality in the sentencing process does not preclude taking judicial notice of systemic deprivation and how (if at all) that may have contributed to the offending. It contends that a consideration of all material factors ought necessarily to include evidence of systemic factors which provide the necessary context for understanding and evaluating the individualised information presented by counsel.
An Ancient Remedy for Modern Ills: The Prerogative of Mercy and Mandatory Sentencing (NEW)
Julian R Murphy et al (2020), 46(3) Monash University Law Review 252
This article aims to ‘reinvigorate’ the prerogative of mercy as a response to the injustices sometimes occasioned by mandatory sentencing regimes. The prerogative was designed to prevent or ameliorate injustices occasionally arising from the general applicability of criminal law. The article argues that this issue arises most significantly in mandatory sentencing regimes, which preclude sentencing judges from exercising discretion. The article contends the prerogative has long served as an intra-systemic response to the occasional injustices of mandatory sentencing, but its capacity to function in this way has been forgotten by modern Australian scholars.
The Devil You Know Is Not Better – The Non-Consensual Distribution of Intimate Images and Sentencing (Law Library login required)
Marilyn Bromberg (2020), 44(3) Criminal Law Journal 173
Part A of this article argues that the decision in Western Australian Police v Brindley - that an offender seeking revenge upon a partner by distributing their intimate images without consent was a less serious offence than those motivated by coercion, sexual gratification, seeking to obtain money, sextortion, sexploitation – reflects outdated and concerning views regarding leniency when sentencing domestic violence offenders, and fails to reflect the seriousness of the crime and the need for deterrence.
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 (Law Library login required)
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.
Myths, Misconceptions and Mixed Messages: An Early Look at the New Tendency and Coincidence Evidence Provisions (NEW) (Law Library login required)
David Hamer (2021), 45 Criminal Law Journal 232.
This article comments on the model provisions reforming the UEL tendency and coincidence provisions. The reforms proposed would relax the exclusionary rules so that the prosecution can more readily rely on tendency evidence in child sexual offence cases. The reforms purport to address various misconceptions, especially those which drive ‘distinctive similarity’ requirements. The article argues that the reforms are unnecessarily complex and restrictive and are more likely to increase confusion and waste time and costs than to improve understanding of the inferential value of other misconduct evidence.
Injustice Arising from the Unnoticed Power of Priming: How Lawyers and Even Judges can be Misled by Unreliable Transcripts of Indistinct Forensic Audio (Law Library login required)
Helen Fraser and Yuko Kinoshita (2021), 45(3) Criminal Law Journal 142
This article argues that there is an urgent need to change legal procedures for admission of police transcripts of indistinct forensic audio in criminal trials because legal safeguards intended to mitigate any risk that an inaccurate transcript might mislead the jury are inadequate. The article describes an experiment showing that personal confidence is a poor indicator of perceptual accuracy, since listeners can be easily and unwittingly "primed" to hear words suggested by an inaccurate transcript. The article suggests that an evidence-based process should be adopted to ensure all indistinct forensic audio used in court is accompanied by a reliable transcript.
Facial Recognition and Image Comparison Evidence: Identification by Investigators, Familiars, Experts, Super-Recognisers and Algorithms
Gary Edmond et al (2021) 45(1) Melbourne University Law Review (advance)
This article explains why conventional legal approaches to the interpretation of images (such as CCTV) to assist with identification are misguided. It summarises relevant scientific research, including emerging research on face matching by humans (including super-recognisers) and algorithms, and explains how legal traditions, and the interpretation of rules and procedures, have developed with limited attention to what is known about the abilities and vulnerabilities of humans, algorithms, and new types of hybrid systems. The article incorporates scientific research to explain the need to develop rules and procedures that attend to evidence of validity, reliability, and performance, and recommends using images in ways that incorporate scientific knowledge and advance fundamental criminal justice values to avoid the unrecognised risks of (surprisingly) error-prone human performance and potential bias in comparisons made in criminal proceedings.
Respects of Character (Law Library login required)
Greg Taylor (2020) 44(1), Criminal Law Journal 32
This article discusses what can constitute a "respect of character" as regards an accused's claim to have a good character in a "particular respect" under the UEL and concludes that – as the accused cannot raise character except intentionally – the accused's delineation of the "respect" defines it.
Regulating Forensic Science and Medicine Evidence at Trial: It's Time for a Wall, a Gate and Some Gatekeeping (Law Library login required)
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
Rebutting the presumption of intentional revocation of a Will by destruction: An examination of electronically signed and remotely witnessed Wills (NEW) (Law Library login required)
Christie Gardiner and Lee Aitken, (2022) 51 Australian Bar Review 70
This article discusses whether and how the introduction of electronic execution and remote witnessing and attestation of Wills in response to COVID-19 disrupts the common law presumption of intentional revocation of a Will by destruction when the original Will is last traced to the testator’s possession but cannot be found on their death.
This article argues that the nature of electronic Wills can both pose challenges for rebutting the presumption of destruction, and provide a level of assurance that can overcome some of these challenges. These challenges include poor access to digital records, uncertainty as to which record is the original file and which the copy, and the risks associated with ambiguous document storage practices.
Reconceptualising Fiduciary Regulation in Actual Conflicts
Man Yip and Kelvin FK Low (2021), 45(1) Melbourne University Law Review (advance)
This article reviews the fiduciary duty to avoid actual conflicts and argues that the duty adds limited substantive value to fiduciary accountability. It proposes that many of the modern scenarios involving actual conflicts of duties (and/or interests) are better analysed not in terms of conflict avoidance but in terms of conflict management.
The Requirement of Property or Possessory Rights for Relief against Forfeiture (Law Library login required)
Fabian Di Lizia (2021), 95 Australian Law Journal 641
This article considers the doctrine of relief against forfeiture and argues that Australian courts should not adopt the approach of the English courts, which hold that a forfeited right must be sufficiently "proprietary" or "possessory" and not "merely contractual" where the object of the relevant transaction is to secure a stated result. The article argues that this approach is not required to uphold the underlying rationale of relief against forfeiture to mitigate against the unconscientious exercise of contractual power; that it is unclear why the courts of equity should protect property rights above others; and that such an approach leads to confusion about what is sufficiently "proprietary" or "possessory" to enliven the jurisdiction to grant relief.
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.
Public law (including human rights)
What Makes an Administrative Decision Unreasonable?
Hasan Dindjer (2021), 84(2) Modern Law Review 265
This article considers the nature of reasonableness review in administrative law and proposes that reasonableness be understood as a requirement of ‘relativised justification’: a decision must be justified relative to some eligible understanding of the balance of reasons. The article suggests a simple approach in practice: the court identifies the most favourable understanding of the relevant considerations the decision-maker is entitled to act on, and asks whether, relative to that understanding, its reasons were defeated by the countervailing reasons.
Consumer and competition law
Unconscionable conduct under the Australian Consumer Law: Clarification and Contention (NEW) (Law Library login required)
Philip H Clarke (2021), 49 Australian Business Law Review 180
This article examines the Full Federal Court's decisions in ACCC v Quantum Housing Group Pty Ltd (No 2)  FCAFC 40 and Good Living Co Pty Ltd v Kingsmede Pty Ltd  FCAFC 33, which leave unanswered the question of whether s 21 can be invoked by a third party to obtain a remedy when the conduct is unconscionable towards others and if so, in what circumstances.
This article argues that third parties can invoke s 21 on the basis that the wording of the provision does not require the target of impugned conduct to be the other party to the transaction/ The wording is a deliberate choice not to restrict the scope of the provision and the matters listed in s 22 on unconscionability are not exhaustive or restrictive and suggest no basis for interpreting s 21 narrowly. The legislative purpose tends to favour a broad interpretation to enable s 21 to be relied upon by third-party victims.
Causation in Misuse of Market Power Claims under the Competition and Consumer Act 2010 (Cth) (NEW) (Law Library login required)
Katharine Kemp (2022), 49(4) Australian Business Law Review 208
Following amendment of the Competition and Consumer Act 2010 (Cth) s 46, in 2017, a finding of misuse of market power no longer depends on proof of a causal link between a firm's substantial market power and the impugned conduct. The focus now is on the causal link between its conduct and the alleged actual or likely substantial lessening of competition. This article addresses the challenge of analysing cause and effects under the amended s 46. It proposes approaches to causation in challenging cases, namely those involving multiple causes; monopoly leveraging claims; and the special dynamics of multi-sided platforms.
Systems of misconduct: Corporate culpability and statutory unconscionability (Law Library login required)
Elise Bant and Jeannie Marie Paterson (2021), 15 Journal of Equity 63
This article considers the role of intentionality in establishing unconscionable conduct contrary to statute. It argues that courts applying the statutory prohibition have begun to develop a powerful concept of ‘systems unconscionability’, which recognises intentionality, and thus culpability, expressed through purposive systems.
Corporate states of mind can be discerned through their adopted and implemented systems, which may disclose both the corporation’s purpose(s) and the knowledge necessary for the particular system to function. A systems-based analysis enables courts to identify gradations of mental state, from a specific predatory intent through to a callous disregard of the risks of harmful consequences, and to develop a broader theory of corporate conscience that is independent of its human employees and agents.
Te Ao Mārama – a vision for the District Court of New Zealand (NEW) (Law Library login required)
Judge Heemi Taumaunu (2022), 96 Australian Law Journal 94
The Te Ao Mārama model addresses challenges including that Māori are disproportionately over-represented in a monocultural and monolingual justice system that fails to incorporate Indigenous culture and language, or to tap into support and knowledge held in Indigenous communities.
The proposed changes, which include infusing Indigenous language and culture into the system, increasing community involvement to improve information available to judges, toning down formalities, and a focus on addressing underlying causes of offending, are Court-led and judge-led initiatives which do not require any legislative change.