Faculty of Law
Book of Abstracts
Arnold Bloch Leibler
Honours Conference
Monday 12 and Tuesday 13 October 2015
Program
Monday 12 October
8.30am
9 – 10.30am
Registration – Collect Name Tags and Book of Abstracts
Welcome and Plenary – Professor Justin Malbon, Associate Dean (Resources), Monash University
Keynote, Guest Speakers – Leon Zwier, Partner, and Christine Fleer, Senior Associate, Arnold Bloch Leibler
10.30 – 11am
Morning tea
11am – 12.30pm
Session 1
Session 1A: Exploring
Contract Law
Session 1B: Competition
and Property Law
Session 1C: Facilitating Justice
Chair: Raphael Leibler, ABL
Chair: Professor Justin Malbon
1.David Bell – Accountability in
Government Contracting Out, through
the Paradigm of Offshore Processing
(Supervisor: Professor Matthew Groves)
1.
Olivia McIntosh – The Unspoken
Reasons in the Pilbara Decision
(Supervisor: Professor Justin Malbon)
1.
Emily Fischer – The Potential Liability
of Mediators in Australia
(Supervisor: Professor Tania Sourdin)
2.
Lana Gurton – Will AS 11000 Move
Australian Standard Form Construction
Contracts into the 21st Century?
(Supervisor: Associate Professor Paula
Gerber)
3.
Paul Rota – Requiem for Consideration:
Rest in Peace
( Supervisor: Professor Justin Malbon)
12.30 – 1.30pm
Lunch
1.30 – 3pm
Session 2
3.
Nathan Van Wees – The Zone of
Interests Test in Australian Standing Law
(Supervisor: Professor Matthew Groves)
Session 2B: Corporation Laws
Around the World
Session 2C: Employment
and the Workplace
Chair: Dr Maria O’Sullivan
Chair: Dr Eric Windholz
Chair: Dr Karen Wheelwright
1. Monique Failla – Outsourcing
Obligations to Developing Nations:
Australia’s Refugee Resettlement
Agreement with Cambodia
(Supervisor: Dr Maria O’Sullivan)
1.
Sarah Glynn – A Tale of Two Duties:
Lessons from the UK on the Duty
of Care, Skill and Diligence
(Supervisor: Dr Eric Windholz)
1.
Tara Alexander – An Unfair Comparison:
The ‘Comparator Test’ in the Disability
Discrimination Act 1992 (Cth)
(Supervisor: Dr Karen Wheelwright)
2.
Elysia Longo – The Missing Link:
Connecting Board Structure and Risk
(Supervisor: Dr Eric Windholz)
2.
Gisela Nip – Law and Disorder:
The Need for Psychological Safety
in the Legal Workplace
(Supervisor: Dr Eric Windholz)
3.
Declan Murphy – ‘Targeted Tinkering’
with Judicial Review, or Something
More?
(Supervisor: Professor Matthew Groves)
3 – 3.30pm
Afternoon tea
3.30 – 5pm
Session 3
Session 3A: A Tasting Plate
Chair: Professor Jonathan Clough
1. Helena Kanton – Rethinking Admissibility
and Discretionary Exclusion of ‘Mr Big’
Confessions under the UEL
(Supervisor: Professor Jonathan Clough)
2. Noam Kolt – International Law
in Constitutional Interpretation?
A New Originalist Perspective
(Supervisor: Professor Jeffrey
Goldsworthy)
3. Sarah Sacher – State of Secrecy:
Data Retention and Human Rights
(Supervisor: Professor Sarah Joseph)
1
3.
Terrance Tong – Strata Titles
and By-Laws: Encumbrances
and Obligations Attached
(Supervisor: Dr Lisa Spagnolo)
2.
Emma Jakeman – Closed Class Actions:
Do They Advance Access to Justice in
Australia?
(Supervisor: Dr Genevieve Grant)
Session 2A: Asylum Seekers
and the Law
2. Rebecca Lew – Unreasonable Flight?
Considering the Effects of Australia’s
New Internal Relocation Assessment
on Women
(Supervisor: Dr Maria O’Sullivan)
5.30 – 7.30pm
2.
Chu Wen Giselle Ng – A Study
on Effective Enforcement of Criminal
Sanctions on Cartels: Is China Ready?
(Supervisors: Associate Professor John
Duns and Professor Christine Parker)
Chair: Professor Matthew Groves
3. Ahmed Terzic – Turning to Chapter 11
to Foster Corporate Rescue in Australia
(Supervisor: Associate Professor
Emmanuel Laryea)
3. Jakub Patela – Do the Fair Work Act’s
Sham Contracting Provisions Deter
Sham Contracting?
(Supervisor: Dr Karen Wheelwright)
Session 3B: Human Rights
and Discrimination
Session 3C: Crime and
Sentencing
Chair: Professor Sarah Joseph
Chair: Dr Eric Windholz
1. Avital Grossman – Harvesting Hatred:
Addressing Holocaust Denial under
Australian Law
(Supervisor: Dr Tania Penovic)
1. Alice Alexander – Hate against Women:
The Potential for Recognition under
Victorian Law
(Supervisor: Dr Heli Askola)
2.
Daniel Herszberg – Protecting Minority
Languages: Rhetoric and Reality
(Supervisor: Ms Melissa Castan)
2.
Jake Collom – Victoria’s New
Self-Defence Law: An Improvement?
A Case Study
(Supervisors: Associate Professor
Bronwyn Naylor and Dr Danielle Tyson)
3.
Chaim Levin – Opposing Schools
of Thought: To What Extent Should
Religious Schools Be Bound by NonDiscrimination Law?
(Supervisors: Professor Marilyn Pittard
and Dr Colin Campbell)
Cocktail Function at Arnold Bloch Leibler – 333 Collins Street
3.
Marta McCormack – Intoxication in the
NSW ‘One-Punch’ Law: Recalling the
Complexities of Alcohol-Related Violence
(Supervisor: Dr Kate Seear)
Tuesday 13 October
9 –10.30am
Session 4
Session 4A: Science, Technology
and the Law
Session 4B: International Law
Session 4C: Tax and Takeovers
Chair: Dr Richard Joyce
Chair: Kaitlin Lowden, ABL
Chair: Dr Kate Seear
1.
James Beavis – Atlas Meets Leviathan:
Considering Seasteadings’ Claim
to Statehood under International Law
(Supervisor: Associate Professor Patrick
Emerton)
1.
Elizabeth Davies – Testing
Transactions: The International
Arbitration of Transfer Pricing Disputes
(Supervisor: Professor Jeffrey
Waincymer)
2.
Lu Feng – Crisis in the Eurozone:
A Legal Perspective
(Supervisor: Dr Heli Askola)
2.
Saskia Solopotias – Does Australia’s
Superannuation Taxation System
Promote Equity? An Examination
of Select Policies
(Supervisor: Professor Stephen
Barkoczy)
1.
Esther Lestrell – DNA Evidence in the
Victorian Supreme and Appellate Courts:
An Empirical Analysis
(Supervisors: Dr Genevieve Grant and
Mr Jamie Walvisch)
2.
Julia Walker – Problematisations
in Vaccination Policy: Conscientious
Objection and the No Jab, No Pay Policy
(Supervisor: Dr Kate Seear)
3.
Eliza Lockhart – The Regulation of Uber:
Are Innovation and Regulation Mutually
Exclusive?
(Supervisor: Dr Eric Windholz)
10.30 – 11am
Morning tea
11am – 12.30pm
Session 5
3.
Amanda Fung – The Annexation of
Crimea through a Rose-Coloured Lens
(Supervisor: Dr Richard Joyce)
3.
Cornelius Lim – Takeover Regulation
and Minority Shareholder Protection:
An Australian Perspective
(Supervisor: Dr Weiping He)
Session 5A: Humanitarian
Concerns
Session 5B: Banking
and Finance Law
Session 5C: Climate Change
and the Law
Chair: Associate Professor Patrick Emerton
Chair: Associate Professor Gillian North
Chair: Claire Stubbe, ABL
1. Chandni Dhingra – Childproofing War:
Prosecuting Sexual Violence against Child
Soldiers
(Supervisors: Associate Professor Gideon
Boas and Dr Douglas Guilfoyle)
1.
Ryan Abotomey – The Impact of the
Post-Andrews Penalties Doctrine on
Banking and Finance Contracts
(Supervisor: Dr Lisa Spagnolo)
1. Georgia Dobbyn – The WTO
and the Challenge of Climate Change:
Part of the Problem or Part of
the Solution?
(Supervisor: Dr Gerry Nagtzaam)
2.Shamistha Selvaratnam –
The Responsibility to Protect: Break
the Security Council Deadlock
(Supervisor: Dr Maria O’Sullivan)
2.
Stephen Moore – Expropriating
Our Future: Rectifying Indeterminacy
in Investor-State Dispute Settlement
(Supervisor: Professor Jeffrey
Waincymer)
2.
Tim Rankin – Rising Standards: Climate
Change and Professional Liability in the
Construction Industry
(Supervisor: Dr Gerry Nagtzaam)
3.Joshua Yuvaraj – When Do Children
‘Participate Actively in Hostilities’
at International Criminal Law?
(Supervisor: Dr Richard Joyce)
12.30 – 1.30pm
Lunch
Ryan Abotomey
Supervisor: Dr Lisa Spagnolo
The Impact of the Post-Andrews Penalties
Doctrine on Banking and Finance Contracts
For some time it has been settled that the
penalties doctrine only applies to obligations
imposed on contractual breach. However,
in 2012 this stability began to unravel.
The culprit? Andrews v Australian and
New Zealand Banking Group Ltd (Andrews).
In Andrews, the High Court of Australia held that
the penalties doctrine applies even where no
breach of contract is involved. The new formula
developed in Andrews, for determining whether
the penalties doctrine applies, now focuses on
‘primary’ and ‘collateral’ stipulations. This thesis
examines the impact of the expanded scope of
applicability of the penalties doctrine on banking
and finance contracts. It finds that this expansion
is not justified on the basis of substance over
form, fairness or overcompensation. However
this thesis also argues that the post-Andrews
penalties doctrine does not completely undermine
freedom of contract, nor expose banking and
finance institutions to significant volumes of
litigation. This thesis concludes that the expanded
penalties doctrine does not substantially expose
typical styles of banking and finance clauses to
unenforceability. It is likely that drafting techniques
will continue to shelter many clauses from judicial
review under the post-Andrews penalties doctrine.
Biography
Ryan is studying Arts/Law, finishing in June
2016. A desire to explore a contract law topic
with significant commercial impacts inspired
his research in the penalties doctrine. A University
highlight has been representing Monash at the
Vis Moot in Vienna. Ryan will undertake a clerkship
at Linklaters, London in 2015.
Alice Alexander
Supervisor: Dr Heli Askola
Hate against Women: The Potential
for Recognition under Victorian Law
In 2009 section 5(2)(daaa) was inserted into the
Sentencing Act 1991 (Vic) requiring that a court
have regard to whether the offence was ‘motivated
(wholly or partly) by hatred for or prejudice against
a group of people.’ To date, ‘women’ have not
been held by the courts in Victoria to be ‘a group
of people.’ Driven by the high incidence of violence
against women, this thesis asks whether this
recognition is possible.
There are numerous areas of contestation that
surround this category of potential application.
Conceptualising ‘women’ as a victim group
challenges theoretical hate crime frameworks
which usually rely on marginalised or minority
victims. The utility of the criminal justice system as
a mechanism to address violence against women
is debated by feminist legal scholars. Application
of this provision in sentencing is dependent
on the effective operation of criminal justice
processes, such as evidence gathering and
prosecution. This thesis finds that these theoretical
and practical challenges to the recognition
of women as a group under section 5(2)(daaa)
can be overcome. Accordingly, the potential utility
of this application of hate crime sentencing in
addressing violence against women is assessed.
Biography
Alice is a final year Arts/Law student. The highlight
of her degree was studying at Prato in 2013 which
combined her studies of law and Italian and love
of Italian food. She plans on spending the summer
scuba diving in Asia before starting at Lander &
Rogers in 2015.
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Tara Alexander
David Bell
Elizabeth Davies
Supervisor: Dr Karen Wheelwright
Supervisor: Professor Matthew Groves
Supervisor: Professor Jeffrey Waincymer
An Unfair Comparison: the ‘Comparator Test’
in the Disability Discrimination Act 1992 (Cth)
Accountability in Government Contracting Out,
through the Paradigm of Offshore Processing
Testing Transactions: The International
Arbitration of Transfer Pricing Disputes
In order to determine whether direct discrimination
has occurred under the Disability Discrimination
Act 1992 (Cth) (the DDA), s 5(1) of the DDA
requires a comparison to be made between
the way in which the person with the disability
is treated (or it is proposed that they be treated)
and the way in which a person without
the disability is treated or would be treated
in circumstances that are the same or not
materially different. That other person, whether
actual or hypothetical, is often referred
to as the ‘comparator’.
The incidence of governments contracting
out the provision of services to the private sector
continues to rise, primarily due to perceived
efficiency gains and access to the skills and
expertise of the private sector. But at what
cost has this been achieved? The subsequent
fragmentation in the delivery of government
services has led to a reduction in overall
accountability as the responsibility for the delivery
of these services is diffused between government
and the contractor.
Today, the majority of commercial transactions
take place between the related companies of
multinational corporate groups. When two related
entities conclude a deal, the agreed remuneration
is known as the ‘transfer price’. Under domestic
tax laws, however, the transfer price must be
equivalent to that which would be paid in a deal
between two unrelated companies.
The comparator test is a key element when
determining under the DDA whether discrimination
has occurred or not. This thesis will critically
examine the comparator test to determine whether
it is an appropriate test in line with the objects
of the DDA. This thesis will discuss problems
in relation to the application of the test and
explore possible alternatives. This thesis finds
that the comparator test is problematic and
should be modified, if not replaced, in the DDA.
Biography
This paper seeks to investigate accountability
issues relating to federal contracting out
of government services, through the example
of the management of offshore processing centres
in Nauru and Manus Island. This includes a review
of accountability frameworks and an exploration
of the reasons why government contracting
out has become the preferred method of service
delivery, a review of the High Court’s view
on the limits of government contracting
out, and both legislative and non-legislative
mechanisms to increase accountability in this area.
Tara is a final year Arts/Law student. She is
currently on exchange in Lyon, France for the
final semester of her degree. Straight after
finishing her exchange, Tara will undertake
a legal internship in Paris. She plans to travel
in Europe before commencing her legal career.
Biography
James Beavis
Jake Collom
Supervisor: Associate Professor Patrick Emerton
Supervisors: Associate Professor Bronwyn
Naylor and Dr Danielle Tyson
Atlas Meets Leviathan: Considering
Seasteadings’ Claim to Statehood under
International Law
Separatist movements have often been thwarted
by the zeal with which established States
guard their territory, and the reluctance of the
international legal system to allow disruption
of existing borders. Attempted libertarian utopias,
like the Republic of Minerva, have suffered similar
fates. The Seasteading Institute hopes to change
this. Its goal is to create self-sustaining, oceangoing cities, and it hopes eventually to have these
‘seasteadings’ recognised as States, although
it has not researched the question of whether this
is an attainable goal. This thesis examines whether
seasteadings are able to satisfy the criteria
of Statehood under international law. The unique
circumstances of seasteadings raise questions
concerning each criterion of the test. Moreover,
the ways in which seasteadings interact with
established States and their maritime boundaries
poses difficulties for their claim to Statehood.
This thesis considers that the Seasteading
Institute’s approach that Statehood is an ‘obstacle
for later’ is optimistic, and that their core ideology
may operate as an obstacle to their recognition.
Ultimately, this thesis hopes not only to provide
guidance on the complex and, at times ambiguous
doctrine of Statehood, but also assistance
to those who hope to remove themselves from
the system altogether.
Biography
James is a final year Science/Law student.
He became interested in international law after
competing in the Philip C Jessup Moot, where
he reached the semi-final of the Australian rounds.
In 2016 he will be commencing as a graduate
at Corrs Chambers Westgarth.
3
David is a fifth year BA/LLB student, who is
looking forward to completing his final law subject
next semester. He will then spend some time
travelling, and catching up on things he hasn’t had
time for this year: TV shows, books and hiking.
Victoria’s New Self-Defence Law:
An Improvement? A Case Study
Victoria’s self-defence law has historically failed
to achieve just outcomes in intimate partner
homicide cases in which the accused is a family
violence victim. Judges, juries, lawyers and police
have repeatedly failed to understand the complex
nature of family violence. Instead, they have relied
on common, but thoroughly discredited, family
violence myths.
Since September 2001, Victorian governments
have passed two sets of reforms that attempt
to address this problem: the 2005 reforms and
the 2014 reforms. The 2014 reforms are yet
to be applied in court.
This thesis uses trial transcripts from two recent
intimate partner homicides, DPP v Bracken and
DPP v Williams, to analyse whether Victoria’s
2005-2014 self-defence law was achieving three
of the key purposes of the 2005 reforms. These
three key purposes were: (1) to help judges, juries,
lawyers and police understand, and take into
account, the complex nature of family violence;
(2) to dispel common family violence myths; and
(3) to recognise that family violence victims tend
to kill in different circumstances than the traditional
‘one-off’ confrontations in which the law of selfdefence developed. This thesis concludes that
Victoria’s self-defence law will likely need to be
reformed further in order to achieve these key
purposes.
Biography
Jake is a final year Biomedical Science/Law
student. He looks forward to starting his legal
career in 2016 working as a criminal defence
lawyer, defending the powerless against
the powerful.
Unsurprisingly, opinions often differ on the correct
transfer price. These differences can escalate into
fiercely contested disputes, since the transfer price
determines the net profit or loss, and hence the
tax payable. These disputes are predicted
to become more frequent as governments seek
to prevent multinational entities from using transfer
pricing to move profits to low-tax jurisdictions.
In an area of law so technically challenging,
how are such disputes best resolved?
Presently there is no cohesive system
of international taxation dispute resolution.
However, one much discussed possibility
is to resolve such conflicts through arbitration.
This paper compares the existing bilateral
and multinational arbitration procedures
in relation to other dispute resolution options.
Ultimately, the author contends that that a system
of arbitration will be ineffective in the long-term
without the establishment of a supranational
body to make appointments, draft procedures
vand provide practical guidance.
Biography
Elizabeth is in her final year of an Arts/Law degree.
Her thesis combines her interests in tax policy
and international arbitration. Since a career as
a professional napper has proved impossible,
in 2016 she will commence work in a federal
government department.
Chandni Dhingra
Supervisor: Associate Professor Gideon Boas
and Dr Douglas Guilfoyle
Childproofing War: Prosecuting Sexual Violence
against Child Soldiers
Sexual violence against child soldiers committed
by their military superiors has been a widespread
issue for centuries and continues in conflicts today.
However it was recognised as a discreet crime
that could be prosecuted before the International
Criminal Court (‘ICC’) only last year. This thesis
seeks to evaluate the most effective way to
prosecute this crime within the framework
of the Rome Statute of the ICC.
Two major approaches to prosecuting sexual
violence against child soldiers are considered.
First, as a form of ‘use’ of these children to
‘participate actively in hostilities’ in light of the ICC
case of Lubanga. Second, framing child soldiers
as non-combatants and victims at the time of
the exploitation under separate sexual violence
charges, as indicated at pre-trial level in Ntaganda.
Ultimately, this thesis finds that neither approach
is effective. The first requires the uncomfortable
framing of the sexual exploitation of a child soldier
as ‘essential support’ in conflict. The second
transplants elements of International Humanitarian
Law resulting in limitations being placed on the
child’s experience as a victim of ongoing sexual
abuse. Drawing on both approaches and the
discussed scholarly debate, this thesis offers
a proposal for reform.
Biography
Chandni is a final year Arts (Philosophy)/Law
student. A highlight of her degree has been
her exchange to Utrecht University, where
she became interested in international law.
Chandni is looking forward to having a year
to learn more about the world and herself,
before starting at Allens in 2017.
Georgia Dobbyn
Supervisor: Dr Gerry Nagtzaam
The WTO and the Challenge of Climate Change:
Part of the Problem or Part of the Solution?
As the initial impacts of climate change are being
experienced, pressure to prevent what is predicted
to be even greater and more catastrophic
consequences is mounting. These consequences,
their disproportionate impact on the world’s poor,
the urgent time frame and the need for effective
international and inter-disciplinary cooperation
merge to form the overwhelming challenge that
is anthropogenic climate change. In spite of this
(or perhaps because of this), attempts to address
this challenge at an international legal and
institutional level have been limited in success.
This is not for want of effort on the part of many,
particularly those working through and in support
of the United Nations Framework Convention
on Climate Change (UNFCCC). Rather it is due
to the scale and complexity of the challenge,
which defies any solution through international
environmental law alone. As the World Trade
Organisation (WTO) stands out as one of the
strongest institutions within international law,
this thesis examines the potential role of the
WTO in facilitating meaningful action to address
climate change. Central to this is whether it is
possible to reconcile trade and economic growth
with the objective of avoiding anthropogenic
climate change.
Biography
Georgia Dobbyn completed a Diploma of
Languages (Chinese) and will complete her Arts/
Law degree over summer through an internship
for Lawyers Without Borders, Washington DC.
She looks forward to celebrating all this
completion, and to commencing as a graduate
with Allens in 2017.
Monique Failla
Supervisor: Dr Maria O’Sullivan
Outsourcing Obligations to Developing Nations:
Australia’s Refugee Resettlement Agreement
with Cambodia
Despite a proclaimed commitment to international
solidarity in the formation of durable solutions for
refugee resettlement, a pattern of defensive policy
designed to outsource obligations under
the 1951 Refugee Convention has recently
emerged. Following an unfortunate succession
of events in 2011, including the MV Tampa
incident, asylum seeker discourse in Australia has
fostered a demarcation between the ‘invited’ and
‘uninvited’ asylum seeker and the introduction of
increasingly punitive measures to deter and deflect
the latter. Within this context, in September 2014
Australia and Cambodia signed a responsibility
sharing agreement for the relocation to Cambodia
of recognised refugees who originally sought
protection in Australia and were removed to
Nauru for processing.
This thesis examines the legal, practical and
ethical issues that arise in the context of bilateral
burden-shifting agreements pursuant to which
developed states seek to outsource their
international obligations to developing states
in exchange for the provision of humanitarian
aid and monetary compensation. It finds that
while the Agreement purports to uphold the
1951 Convention, in practice Cambodia faces
many well-documented human rights challenges,
has historically breached its non-refoulement
obligations, and has failed to successfully integrate
refugees. Ultimately a true burden-sharing
framework, which seeks to establish regional
solidarity in refugee processing and resettlement,
should instead be pursued.
Biography
Monique is completing her final year of a Bachelor
of Arts and Laws and Diploma in Languages
(Italian), in which she majored in Indonesian
and International Studies. She is passionate
about human rights and aspires to work within
an independent human rights organization
with a particular focus on refugee law.
Lu Feng
Supervisor: Dr Heli Askola
Crisis in the Eurozone: A Legal Perspective
In light of the continuing Eurozone crisis and
the recent approval of the third Greece bailout,
the headline issue of where the future of the
Economic and Monetary Union, the single
currency regime and the European integration
project lies remains to be a puzzle. This thesis
seeks to unravel the puzzle by firstly, providing
an insightful overview of the European integration
history before the crisis by bundling the milestone
phases of the European integration project
together with the fundamental integration theories
of supranationalism and intergovernmentalism;
secondly, examining the legal and institutional
set-up of the monetary union as well as the legal
causes of the crisis, with a specific focus on the
Stability and Growth Pact and its enforcement
at the European Union level; thirdly, analysing
the legal issues arising out of a number of rescue
measures in response to the Eurozone crisis
which controversially embody a strong tilt towards
intergovernmentalism; and lastly, looking at the
possible solutions to the crisis and providing some
final thoughts over the uncertain prospects
of Europe.
made to existing statutory immunity regimes.
Prominent ethical issues in mediation are also
explored. Given the dearth of case law on the
topic, conclusions as to the potential liability
of mediators are inevitably speculative. However,
this thesis finds that although it may be difficult,
is at least possible to successfully bring an action
against mediators. In particular, mediators may
be liable for breach of contract, under the
Australian Consumer Law, or in tort. Arguably,
mediators may also owe fiduciary duties to
disputants, a breach of which would give rise
to liability. Further, if mediators fail to comply with
statutory reporting obligations, they may commit
a criminal offence.
Biography
Emily is currently completing the final year of her
Arts/Law degree. She enjoys coffee, pistachios
and listening to the Brian Jonestown Massacre.
She is looking forward to spending some time
in Queensland over summer and hopes to travel
to Mexico and the US after graduating.
Amanda Fung
Supervisor: Dr Richard Joyce
The Annexation of Crimea through
a Rose-Coloured Lens
Russia has been heavily criticised for its
involvement in, and annexation of, the Crimean
Peninsula. The reliance of an external state
on the exercise of the right to self-determination
by an independence-seeking group, to excuse
its otherwise unlawful involvement, conflicts with
other customary international norms including
the prohibition against the use of force and the
principles of sovereignty and non-intervention.
This thesis focuses on the extent to which an
external state can become involved in the exercise
of self-determination by an independence-seeking
movement.
The law of self-determination in the non-colonial
context is unsettled due to differing interpretations
between the traditional West and former USSR,
a remnant of Cold War tension. For the West,
the right to self-determination is limited due to
emphasis on the preservation of territorial integrity.
The USSR interpretation allows for unilateral
secession to achieve the greater socialist order.
Lu is a fifth year Commerce/Law student who
is interested in the area of Eurozone crisis after
studying a EU law summer course at London
School of Economics and Political Science.
Upon graduation, she is looking forward to
starting her career overseas at Freshfields
Bruckhaus Deringer as a trainee solicitor.
This thesis finds that despite neither
view being strictly supported in international
law, Russian involvement is not consistent
with the former USSR interpretation of the
law of self-determination. This thesis concludes
that Russia is not alone in its self-serving use
of international law and discusses the effect
this has on international law and the law
of self-determination.
Emily Fischer
Biography
Biography
Supervisor: Professor Tania Sourdin
The Potential Liability of Mediators in Australia
Mediation is a ubiquitous, institutionalised and
diverse form of dispute resolution within the
Australian legal system. In view of the large
number of mediations that take place each year,
it is somewhat surprising that no legal action has
been successfully brought against a mediator in
Australia. This cannot be taken as indicating that
mediator misconduct is not a problem, however,
as plaintiffs are likely to face significant obstacles
in suing mediators. This thesis explores whether,
and if so how, mediators may be held liable for
misconduct. It discusses definitional issues,
considers the policy ramifications of mediator
immunity, and advocates for changes to be
Amanda is a final year Commerce/Law student.
She has enjoyed travelling throughout her
university degree (for leisure and Ultimate Frisbee!)
including to Russia where her interest in the
Russia-West conflict was piqued. She is looking
forward to starting at Herbert Smith Freehills
London in 2016.
4
Sarah Glynn
Supervisor: Dr Eric Windholz
A Tale of Two Duties: Lessons from the UK
on the Duty of Care, Skill and Diligence
Achieving the appropriate balance between
the interests of directors, shareholders and other
stakeholders has occupied legal commentators
and politicians for many years. Today, much
of the debate focuses on whether the statutory
duty of care, skill and diligence in s 180(1)
of the Corporations Act 2001 (Cth) is too harsh
on directors, with a number of critics suggesting
a range of reforms. This thesis examines whether
additional defences for directors alleged to have
breached their duties should be introduced into
the Act, alongside the existing business judgment
rule in s 180(2). It will take a less travelled
approach by analysing the corresponding
law in the United Kingdom. The historical
significance of the UK to Australia, and the
similarities of our legal, economic and political
systems, makes the divergence in the law of
directors’s duties between the two jurisdictions
a useful point of comparison and raises important
questions that warrant more consideration than
they appear to have received to date.
Biography
Sarah is in her final year of her Bachelor of Arts
and Laws. In her Arts degree, she completed
a double major in History and English Literature.
She is looking forward to commencing
as a graduate with Allens in 2016.
Avital Grossman
Supervisor: Dr Tania Penovic
Harvesting Hatred: Addressing Holocaust
Denial under Australian Law
This thesis examines the Racial Discrimination
Act 1975 (Cth) as a vehicle for addressing
Holocaust denial in Australia. The wording and
scope of section 18C of the Act are examined
in conjunction with jurisprudence addressing
the section’s applicability to Holocaust denial.
A comparative approach is taken in evaluating
the utility of section 18C, drawing on laws
enacted in a number of other countries which
deal specifically with Holocaust denial. This thesis
concludes that the generic race hate provisions
underpinned by section 18C are an appropriate
vehicle for addressing Holocaust denial
in Australia.
Biography
Avital is a penultimate year student studying
a Bachelor of Commerce and Laws. A highlight
of her degree was the Mishpatim Program in Israeli
and International Law at Hebrew University and
clerking at Herzog Fox Neeman in Israel.
Outside of her studies she enjoys travelling.
Lana Gurton
Supervisor: Associate Professor Paula Gerber
Will AS 11000 Move Australian Standard Form
Construction Contracts into the 21st Century?
In January 2015, Standards Australia released
a new draft standard form construction contract
AS 11000:2015 – General Conditions of Contract,
which is intended to supersede AS 2124:1992
and AS 4000:1997. In a statement issued by
Standards Australia, the long overdue draft
is intended to provide general guidance for
contracts in all sectors of the industry, including
construction, engineering, health, manufacturing
5
and infrastructure. Commendably, AS 11000
recognises that, by its very nature, the building
and construction industry is conducive to costly
disputes. Accordingly, AS 11000 proposes
a number of significant amendments, which
are intended to assist in the management and
resolution of disputes.
By reference to leading standard form construction
contracts in the United Kingdom and the
United States of America, this thesis explores
the proposed overarching obligation of good
faith and the introduction of an early warning
procedure. The proposed dispute resolution
clause, which includes options for mediation,
arbitration, expert determination, and an optional
‘contract facilitation’ or dispute resolution board,
is also examined. After making a number of
recommendations, this thesis contends that
AS 11000 has the potential to deliver benefits
to both parties in the construction industry
and propel Australian standard form construction
contracts into the 21st century.
Biography
Lana is in the final year of her Bachelor of Laws
degree. In her spare time, Lana enjoys long walks
on the beach with her kelpie, Gypsy and drinking
red wine by the campfire.
Daniel Herszberg
Supervisor: Ms Melissa Castan
Protecting Minority Languages: Rhetoric
and Reality
The general consolidation of national borders in
the last half-century has led to political campaigns
aimed at cultural and linguistic homogenisation.
In turn, this has threatened the future of minority
languages. If we truly value diversity, the question
remains as to the best methods of protecting
minority languages.
Given the significance of education to the
continuity of language and culture, this thesis
focuses on whether international law protects
against state-orchestrated campaigns of linguistic
assimilation. Such campaigns essentially amount
to cultural destruction in non-violent contexts.
By analysing the existing legal protections offered
to minority groups, this thesis finds that the reality
of implementation does not reflect the idealistic
rhetoric. Consequently, the existing legal regime
is powerless when confronted with systematic
homogenising campaigns implemented through
education policies.
In offering prospective legal reform, the historic
notion of the crime of cultural genocide is
considered. Drawing on theory and recent legal
developments, this thesis argues that the crime
of genocide should be extended to include
a cultural component. By criminalising cultural
ruination, this reform offers greater protection
to minority languages. This thesis finds that
the effective safeguarding of minority languages
may require a departure from the traditional
rights-based approach.
Biography
Daniel is in his sixth year of a combined Bachelor
of Arts (Hons, Chinese) and Laws. After studying
abroad in Italy and China, he has developed
an interest in the application of international law.
In 2016, Daniel will be relocating to Hong Kong,
to begin a career with Skadden, Arps.
Emma Jakeman
Supervisor: Dr Genevieve Grant
Closed Class Actions: Do They Advance Access
to Justice in Australia?
Access to justice is universally regarded as
an important objective of the civil justice system.
However, despite frequent inquiries and efforts
to advance access to justice, concerns remain
about whether and how this lofty goal is achieved.
In recent years, the access to justice debate
has been enlivened by the advent of closed
class actions (CCAs). Controversy has arisen
as to whether it is appropriate to limit the group
definition in class actions to those who enter into
a retainer with a particular law firm or litigation
funder. Some commentators have criticised
CCAs for inhibiting access to justice. Conversely,
others argue that CCAs generate efficiencies in
the conduct of class actions, advancing broader
justice objectives.
This thesis investigates whether CCAs advance
access to justice in Australia. The assessment
proceeds in three parts. First, the thesis defines
the parameters for measuring access to justice.
Second, it provides an overview of the class
action regime and the commentary on litigation
funding and CCAs. Third, the thesis considers
what the courts are saying about closed classes
and access to justice in practice. Finally, the thesis
determines the extent to which CCAs can be said
to inhibit or advance access to justice.
Biography
Emma is a final year Bachelor of Arts and Laws
student. Highlights of her degree include
a semester at the Monash Prato campus and
an internship at the US Congress. She is looking
forward to spending the summer travelling and
commencing as a graduate at Herbert Smith
Freehills in 2016.
Helena Kanton
Supervisor: Professor Jonathan Clough
Rethinking Admissibility and Discretionary
Exclusion of ‘Mr Big’ Confessions under the UEL
The Mr Big technique was developed in Canada
in the early 1990s, and was approved of by
the Australian High Court in 2007 in Tofilau v
The Queen. This technique involves undercover
police officers posing as members of a criminal
gang, into which they lure a suspect. However,
membership comes with a condition: the suspect
must confess his or her past crimes to ‘Mr Big’
– the gang leader – who will ‘fix’ any problems.
A typical Mr Big scenario is shrouded in a thinly
veiled atmosphere of violence and involves
financial inducements and emotional manipulation.
In 2014, the Canadian Supreme Court rethought
its position on the admissibility of Mr Big
confessions in R v Hart. Following this decision,
Mr Big confessions are presumptively inadmissible
in Canada. This thesis considers whether the three
main ‘problems’ with the Mr Big technique –
the danger of unreliable confessions, the
prejudicial effect of revealing a suspect’s desire
to be part of a criminal gang and the risk of police
misconduct – are properly addressed by the UEL
in its current form. It is argued that Australia should
follow Canada’s lead and adopt a new framework
for dealing with evidence obtained as a result
of this technique, as it presents a novel problem
that calls for additional scrutiny.
Biography
Helena is a final year Commerce(Finance)/Law
student. She became interested in the topic of
her thesis whilst working as a Research Assistant
at the Judicial College of Victoria. After completing
her degree she is looking forward to travelling
before commencing as a graduate at King & Wood
Mallesons in 2016.
Noam Kolt
Supervisor: Professor Jeffrey Goldsworthy
International Law in Constitutional
Interpretation? A New Originalist Perspective
The issue of consulting international law in the
interpretation of domestic constitutions is highly
polarising. Both in Australia and abroad, judicial
and academic responses have been plagued
by a lack of sensitivity and clarity. While originalists
have decried the idea of using contemporary
international law to construe constitutions, nonoriginalists have advocated for the convergence
of international and domestic law, rallied against
dualism and argued that constitutions should
be ‘updated’ to better reflect international human
rights norms.
This thesis presents a middle road between
two untenable extremes. By recognising
international law as a valuable interpretive
resource, it challenges the fierce refusal
of originalists to consult contemporary
international law, yet insists upon fidelity to the
Constitution as a legal text. Drawing on Professor
Goldsworthy’s moderate originalism, a theory
grounded in the notion of ‘objective intention’,
this thesis outlines several pathways, compatible
with originalism, which endorse recourse
to international law. The ambiguity inherent
in many constitutional provisions, abstract
rights guarantees and the unique characteristics
of international law assist in overcoming
traditional originalist objections. This thesis finds
that although originalism constrains the role
that international law can play in constitutional
interpretation, originalism is no barrier to robust
engagement with international law.
Biography
Noam is in the final year of his Bachelor of Arts
and Bachelor of Laws. International law, and its
intersection with constitutional theory, captured
Noam’s attention just before embarking on
exchange studies at the Hebrew University
in Jerusalem. Noam is eager to pursue further
research endeavours in the future.
Esther Lestrell
Supervisor: Dr Genevieve Grant and Mr Jamie
Walvisch
DNA Evidence in the Victorian Supreme and
Appellate Courts: An Empirical Analysis
The use of DNA profile evidence to solve crimes
has been a breakthrough for criminal law. DNA
profiling was discovered and intended for scientific
use, rendering it the ‘gold standard’ of forensic
evidence. However, underpinning the validity of
the evidence is complex genetic and biochemical
science, as well as highly complex mathematical
statistical considerations. DNA evidence
is highly probative, but is not infallible. There is
widespread concern amongst commentators that
DNA evidence is not sufficiently understood by
jurors, legal counsel, or even judges. There is also
concern about the capacity of our traditional legal
system to appropriately assess inadequacies and
counter prejudices associated with DNA evidence.
Despite extensive commentary, how judges
grapple with DNA evidence in their decision
has rarely been the subject of empirical analysis.
This study investigates Victorian Supreme Court
and Court of Appeal decisions where DNA
evidence is one of the grounds of appeal against
conviction, or the subject of evidence admissibility
determinations. The study shows that there
is a significant disjuncture between the DNArelated challenges emphasised in academic
commentary and the problems encountered
and reported by judges in their decisions.
Biography
Esther studies Biomedicine and Law. She has
completed a Bachelor of Arts and Diploma of
Modern Languages at the University of Melbourne,
and studied Nursing at Lund University, Sweden.
She will complete Honours in Biomedicine in
June 2016 and looks forward to a career involving
research: legal, biomedical, and bio-legal!
Chaim Levin
Supervisor: Professor Marilyn Pittard
and Dr Colin Campbell
Opposing Schools of Thought: To What
Extent Should Religious Schools Be Bound
by Non-Discrimination Law?
In a multicultural and pluralistic society such
as Australia, anti-discrimination law plays an
important role in providing equal opportunity
for all people. Discrimination is prohibited
on various grounds, including age, gender,
race, ethnicity, religion, nationality and sexual
orientation. The scope of this paper is limited
to analysing discrimination on the basis of
religion, particularly in the context of schooling
and education. There are many religious-based
schools in Australia. Notwithstanding that these
schools are independent of the state, they still
can (and do) receive substantial government
funding. Therefore, as a matter of public policy,
it is vital to consider the extent to which religiousbased schools are required to comply with antidiscrimination law. This paper considers three
main issues. First, the types of discrimination
which religious schools tend to engage in;
second, the extent to which anti-discrimination
law binds religious schools; and finally,
the opposing policy concerning the extent
to which they should be bound. The policy
debate is underpinned by a divergence
as to the primary purpose of anti-discrimination
law. Whilst some commentators advocate for the
universal protection of personal identities, others
place greater weight on achieving access for all
groups to society. Ultimately, whilst both views
are important, the author considers that priority
should be given to the latter.
Biography
Chaim is a final year Law student, a qualified
and practicing teacher and an ordained Rabbi.
Given his multiple roles, Chaim is keenly interested
in the integration of religion within multicultural,
secular society.
Rebecca Lew
Supervisor: Dr Maria O’Sullivan
Unreasonable Flight? Considering the Effects
of Australia’s New Internal Relocation
Assessment on Women
The increasing global need for the comprehensive
level of protection offered by the Convention
Relating to the Status of Refugees is being met
by States narrowing their interpretation
of obligations owed to asylum seekers.
The Migration and Maritime Powers Legislation
Amendment (Resolving the Asylum Legacy
Caseload) Act 2014 became law last year and
demonstrates that Australia’s refugee policy offers
no exception to this trend: Section 5J provides
that an applicant will only be found to have
a well-founded fear of persecution when ‘the
real chance of persecution relates to all areas of
a receiving country.’ This signals the removal of the
consideration of ‘reasonableness’ of the proposed
area of internal relocation.
This thesis will examine the development
of the reasonableness test and consider, through
examples, the impact that its removal will have
on female applicants. Although the removal of
this well-established test will affect all applicants,
women will be left particularly vulnerable because
of both the typical types of persecution commonly
faced, and also because of gender-specific
challenges women face upon relocating. More
broadly, Section 5J will be used as a lens through
which to examine the way restrictive interpretations
of the Convention in domestic legislation are
of particular disadvantage to female applicants.
Biography
Rebecca is a final year Arts/Law student.
She became interested in refugee law while
volunteering at the Asylum Seekers Resource
Centre. Highlights of Rebecca’s degree have
included debating, mooting and playing Ultimate
Frisbee for Monash. She is looking forward to
commencing as a graduate at Ashurst in 2016.
Cornelius Lim
Supervisor: Dr Weiping He
Takeover Regulation and Minority Shareholder
Protection: An Australian Perspective
One of the key features of Australian takeover
regulation is the protection of minority
shareholders. The Eggleston principles ensure
that as far as practicable, minority shareholders
have an opportunity to participate in a change
of corporate control transaction. By examining
the historical development of the Eggleston
principles, this thesis argues that the narrow
terms of reference given to the Eggleston
Committee eventually led to a comprehensive set
of regulations based around minority shareholder
protection. The various rules in takeover
regulation that seek to achieve this objective will
be examined, and their effectiveness in ensuring
adequate disclosure and equal treatment will
be questioned.
When a takeover bid is made, the last Eggleston
principle requires that all shareholders have
a reasonable and equal opportunity to participate
in any benefits accruing. This has proven to be
quite controversial. This thesis seeks to examine
the legal justifications for this position by weighing
the competing interests of economic efficiency and
fairness. It is submitted that minority shareholder
protection can be justified, so far as it does not
unduly hamper market efficiency. Any future
reform in takeover regulation should be developed
against this backdrop.
Biography
Cornelius is finishing his final semester at Monash
Law School and has thoroughly enjoyed his four
years spent in Melbourne! He enjoys chocolate,
football, and wasting $20 on brunch. He is looking
forward to beginning legal practice next year.
6
Eliza Lockhart
Supervisor: Dr Eric Windholz
The Regulation of Uber: Are Innovation and
Regulation Mutually Exclusive?
The ridesharing smartphone application Uber is
a global phenomenon. Reportedly worth US$50
billion after only 5 years of operation, it is available
in 326 cities across 60 countries. Uber provides
a platform for customers to connect with a driver
in order to share a car ride in the driver’s personal
vehicle. Uber’s smartphone application displays
the proximity of available drivers and enables
customers to ‘e-hail’ a driver, track their location,
pay electronically and rate the service provided.
Uber offers multiple models of service to suit
different needs however its most contentious
model, UberX, has caused uproar within the
incumbent taxi industry, which alleges Uber
unfairly competes by evading existing regulatory
requirements.
This thesis examines the regulatory tension
between the disruptive innovation of Uber and the
entrenched taxi industry. It analyses the regulatory
space into which Uber has emerged, scrutinizes
the current regulatory regime governing taxi-cabs,
and considers what constitutes a good regulatory
framework. Finally, this thesis evaluates potential
regulatory options for the future of the commercial
passenger vehicle industry and, more generally,
extrapolates lessons of broader application to
the interaction between innovation and regulation.
Biography
Eliza is in her penultimate year of an Arts (English
Literature and Italian)/Law degree. She enjoyed
combining her passions for law and all things
Italian by studying a semester at Prato. Eliza is
looking forward to completing her Arts Honours
at Kings College London, before commencing
as a graduate with Allens in 2017.
Elysia Longo
Supervisor: Dr Eric Windholz
The Missing Link: Connecting Board Structure
and Risk
In an ever-changing globalised economy,
companies are constantly facing risk. The ability
to deal with such risk is a determinative factor
in a company’s continued success or failure.
In recent times, risk management has undergone
significant reform. The newest edition of the
ASX Corporate Governance Principles and
Recommendations (‘Governance Principles’)
reflects global developments in corporate
governance and draws upon corporate
governance failings during the GFC to identify
a suite of necessary reforms.
The key addition in the new edition is for listed
companies to disclose three types of risk in their
financial reports: economic; environmental; and
social sustainability risk. Further, the requirement
that the board have the appropriate skillset to
effectively discharge its duties has been reinforced,
with the recommendation that boards have a skill
matrix highlighting the desired mix of skills and
diversity.
Although a link between the structure of the board
and the recognition and management of risk is not
expressly made in the Governance Principles, this
thesis seeks to illustrate that such a connection
is critical. Optimal risk management requires
a firm understanding of the kinds of risk that affect
a company and the means through which a board
can be structured to meet that risk.
7
Biography
Elysia is in her final year of a Commerce
(Accounting)/Law degree. She is looking forward
to travelling through the USA, before commencing
as a graduate at Allens in 2016.
Marta McCormack
Supervisor: Dr Kate Seear
Intoxication in the NSW ‘One-Punch’ Law:
Recalling the Complexities of Alcohol-Related
Violence
There is a significant amount of literature by
commentators discussing the relationship between
alcohol and violence. In the wake of recent socalled ‘one-punch deaths’ in New South Wales,
legislators have attempted to address ‘alcoholfuelled’ violence through several measures.
Changes to the criminal law are partly predicated
upon the assumption that alcohol is a causative
factor in one-punch assaults. Accordingly, the
new law treats alcohol as an ‘aggravating factor’,
whereby an intoxicated offender is liable to serve
a mandatory minimum sentence if found guilty of
a one-punch death. However, there are inherent
problems with treating alcohol as an aggravating
factor in violent offences. In this thesis, I examine
some of these through a detailed analysis of the
legislation. Some of the findings are: (i) that the
NSW parliament makes oversimplified claims
about the interaction between alcohol and
violence; (ii) alcohol-related violence is caused
by a myriad of factors and alcohol cannot be
said to directly, predictably and consistently fuel
violence; (iii) the new laws are inconsistent with
other areas of NSW homicide and liquor-licensing
law; and (iv) legislators may achieve their purpose
in reducing the incidence of alcohol-related
violence more effectively by using evidence-based
approaches and regulatory schemes.
Biography
Marta is a final-year Arts/Law student. She has
an avid interest in criminal law and family law,
and regularly volunteers at the Monash Oakleigh
Legal Service, where she assists economically
disadvantaged parties in the Family Law
Assistance Program. She undertakes similar
work as a law clerk in private practice.
Olivia McIntosh
to facilities involved in consumer-oriented services;
and (ii) imposing access on infrastructure in
vertically integrated export industries may damage
Australia’s international competitiveness.
Regardless of the merits of these assumptions,
it is inappropriate for courts to base rulings
on unexpressed values and assumptions; it is
important that these be made explicit to facilitate
an informed public policy debate on the third party
access regime.
Biography
Olivia is a final year Commerce/Law student.
She is looking forward to travelling to America at
the end of the year to celebrate her graduation and
will be starting as a graduate at Ashurst in 2016.
Stephen Moore
Supervisor: Professor Jeffrey Waincymer
Expropriating Our Future: Rectifying
Indeterminacy in Investor-State Dispute
Settlement
Over the last half century, investor-State dispute
settlement (ISDS) has emerged as a preeminent
mechanism in the encouragement and
facilitation of foreign direct investment. And, by
complementing generous investor protections
with the credible means for their enforcement,
ISDS has indeed proven a powerful tool. However,
despite its widespread adoption, the system
itself has since come under consistent criticism,
both due to the inconsistency of the application
of investor protections, and for the conflicted
consideration of the rights and interests of States.
Referred to collectively as ‘indeterminacy’, this
thesis analyses these concerns through the case
study of indirect expropriation, a particular investor
protection forming the basis of a number of recent
disputes. It then moves to a critical evaluation
of a range of proposed solutions for reforming
ISDS to address these concerns, drawing on
recent practice from States such as India and
Australia, as well as bodies such as the World
Trade Organisation and European Court of Human
Rights. In doing so, this thesis hopes to not only
encourage a more cautious approach to ISDS,
but also to set a path for its future, one in which
the interests of investors and States alike can
be equally and sustainably represented, and
the objectives of ISDS meaningfully fulfilled.
Supervisor: Professor Justin Malbon
Biography
The Unspoken Reasons in the Pilbara Decision
Stephen is a final year Arts/Law student.
He developed a keen interest in international
investment law after representing Monash at
the Foreign Direct Investment Moot in Frankfurt
in 2013, where he and his team competed against
Harvard Law School in the Grand Final. Stephen
will start at ASIC next year.
In Pilbara Infrastructure Pty Ltd v Australian
Competition Tribunal (2012) 246 CLR 379, the High
Court interpreted a critical provision of the national
access regime, which allows a party to access
another party’s facility on terms determined by
the ACCC.
Although the Court’s conclusion is not necessarily
problematic, its reasoning is unpersuasive.
It adopted an arguably unconventional approach
to statutory interpretation, avoiding a purposive
approach and disregarding extrinsic materials
and economic principles. The textualist approach
the Court undertook was of little utility given the
illusiveness of the plain meaning of the words
‘uneconomical for anyone to develop the second
facility’ in s 44H(4)(b) of the Competition and
Consumer Act 2010 (Cth).
The Court’s reasoning invites speculation that its
decision was underpinned by unstated values and
assumptions about how third party access regimes
should operate. This thesis explores the hypothesis
that these were: (i) access should be limited
Declan Murphy
Supervisor: Professor Matthew Groves
‘Targeted Tinkering’ with Judicial Review,
or Something More?
The legal right of asylum seekers to judicially
review adverse Government decisions has been
the source of a significant degree of acrimony
and tension between the judicial and executive
branches of government. Eager to implement
their refugee policies unhindered by judicial
oversight, successive Governments have sought
to curb judicial review for asylum seekers only to
be met with an often intransigent High Court that
has developed increasingly creative responses
to protect the precious right to review. While
this contestation has existed for decades, it has
passed through a series of phases and the latest
chapter merits examination. This thesis finds
that the High Court in its most recent decisions
has been willing to permit the Parliament’s
targeted curtailment of refugees’ rights to
procedural fairness in Executive decision-making.
The High Court has struck a compromise in which
procedural fairness can permissibly be limited
as long as the general architecture of judicial review
remains untouched. This is what now High Court
Justice Stephen Gageler briefly characterised
as ‘targeted tinkering’. The thesis considers this
phenomenon’s immediate effect on refugees’
access to judicial review, as well as its broader
impact on procedural fairness in non-migrations
settings such as in the Allegiance to Australia Bill.
Biography
Declan is in his penultimate year of an Arts/Law
degree. He has been actively interested in the
question of asylum seekers rights for many years.
His attempts to understand this social justice
endeavour in the context of the migration legal
framework continue in this thesis.
Chu Wen Giselle Ng
Supervisors: Associate Professor John Duns
and Professor Christine Parker
A Study on Effective Enforcement of Criminal
Sanctions on Cartels: Is China Ready?
In line with the global trend of criminalising
hardcore cartels pursuant to deterrence, scholars
and regulators have been examining the factors
pertinent to effectively criminalise cartels.
With China emerging as a super economy in the
global market, there is growing pressure imposed
on China to strengthen her cartel enforcement
regime to maintain its compatibility with global
expectations. The imposition of criminal sanctions
is a viable option for China, yet there is a gap
when it comes to analysing China’s readiness to
criminalise cartels. This thesis will focus on China’s
potential to effectively enforce criminal sanctions
as it opines that the introduction of such
sanctions will be futile in the absence of effective
enforcement. Accordingly, it will engage in
a two-part analysis. Part one examines the key
factors that impact enforcement by drawing upon
strengths and deficiencies from the enforcement
regimes in the West. Subsequently, part two
analyses China’s cartel enforcement regime
and considers the challenges China would face
in addressing the factors identified in part one.
The analysis concludes that China is not ready
to criminalise cartels due to obstacles posed
by the institutional, political and cultural factors
surrounding its enforcement agencies.
Biography
Giselle is a final year Commerce/Law student
from Singapore. She is very interested in
commercial law and in particular, comparative
law studies. In her spare time, she leisurely
composes short stories and poems. Upon
graduation, she looks forward to put on her
explorer hat and embrace a new adventure!
Gisela Nip
Supervisor: Dr Eric Windholz
Law and Disorder: The Need for Psychological
Safety in the Legal Workplace
Mental illness caused by psychologically unsafe
workplaces is an ever-growing phenomenon:
one in four barristers and one in three solicitors are
now at high risk of suffering a diagnosable mental
condition. In the past, stigmatisation and ignorance
have silenced discussions about the issue;
however, the problem can no longer be ignored
due to its social, economic and legal ramifications.
Poor employee mental health has insidious social
implications and workplaces lose $11 billion
annually as a result of absenteeism, presenteeism
and compensation claims. This paper explores the
causes and consequences of poor mental health
in lawyers, and evaluates the duty employers owe
to employees under contract law, tort law and
occupational health and safety legislation.
In an industry where poor employee mental health
is often considered axiomatic, it is imperative
employers understand their responsibility
to provide a psychologically safe workplace.
The author contends that although there are
systems in place to protect employee mental health
in Australia, regimes in Canada and England can
inspire more effective solutions to this preventable
problem. This paper concludes with suggestions
for reforms to the law, as well as possible changes
that can be made to the legal profession to
enhance psychological safety in the workplace.
Biography
Gisela is in her final year of an Arts/Law double
degree. She is an avid “mooter” and coffee drinker.
Gisela is also passionate about mental health
awareness and volunteers her time to this cause.
She will be commencing as a graduate at Clayton
Utz in 2016.
Jakub Patela
Supervisor: Dr Karen Wheelwright
Do the Fair Work Act’s Sham Contracting
Provisions Deter Sham Contracts?
‘Sham contracting’ refers to disguising
an employment relationship as one of independent
contract in order to avoid providing employees with
lawful entitlements and protections. It adversely
affects both employees and employers. This thesis
examines the sham contracting provisions in the
Fair Work Act. A key objective of the provisions
is to deter sham contracts.
Though some egregious breaches have been
successfully prosecuted, it is contended that
wthe provisions insufficiently deter sham contracts.
The main section relied on when prosecuting
sham contracts, section 357, is ineffective when
dealing with sham contracts based on ‘triangular
arrangements’ involving employer, employee,
and a third party. The relevant defence is also
easy to prove in many situations.
These weaknesses reduce the probability that
an employer could be successfully prosecuted for
implementing sham contracts, cannot be remedied
by sections 358 and 359, and thus reduce the
deterrent effect of the sham contracting provisions.
It is recommended that section 357 be amended
to address its identified shortcomings. The
proposed amendments will increase the deterrent
effect of the sham contracting provisions, while
recognising that the ambiguous distinction
between an employee and an independent
contractor means that a defence is still needed
in case an employee is inadvertently misclassified.
Biography
Jakub is completing his final year of commerce/
law. He enjoys reading, cycling, and spending time
with family and friends – preferably outdoors.
He intends to finish Gibbon’s ‘Decline and Fall
of the Roman Empire’, camp in coastal Victoria,
and visit family in Europe before commencing
as a 2016 graduate with Allens.
Tim Rankin
Supervisor: Dr Gerry Nagtzaam
Rising Standards: Climate Change and
Professional Liability in the Construction Industry
Climate change and associated extreme weather
events are estimated to cause losses amounting
to 0.5-1% of global GDP by 2050. Climate change
litigation to date has largely targeted emitters
of greenhouse gases or public authorities.
However, injured parties may bring actions
against construction professionals for failing
to be aware of, or adequately provide against,
climate change. Furthermore, as actions against
polluters encounter barriers of causation, and
public authorities are protected by civil liability
regimes, construction professionals and their
insurances become attractive litigation targets.
This thesis examines the types of actions that
may be brought against construction professionals
and the circumstances in which liability will arise.
Due to limitations in actions under contract and
consumer laws, negligence emerges as the most
far-reaching cause of action. This tortious liability
will depend on the scope of the duty of care
owed, and the application of limitation of actions
legislation. However, as certainty in the science
of climate change improves, the standard of care
expected of construction professionals is rising.
Compliance with industry standards may not be
sufficient, particularly as the National Construction
Code will likely be deficient in high emissions
scenarios. Thus tortious liability will compel
construction professionals to monitor and
respond to climate change.
Biography
Tim is a sixth and final year Arts/Law student.
The highlight of his Arts degree was performing
Dvorák’s Stabat Mater with the Monash Singers
and accidentally obtaining a minor in Music.
For Law it was attending the 2015 Oxford IP Moot.
Tim looks forward to starting at Ashurst in 2016.
Paul Rota
Supervisor: Professor Justin Malbon
Requiem for Consideration: Rest in Peace
The position of consideration as a threshold
doctrine in contract formation has been criticised
for many years and by many parties. This thesis
imagines a fictional High Court of Australia decision
which removes consideration as a threshold
requirement. Instead, it is repositioned to play
a role as one of the factors which can evidence
an intention to be legally bound.
This thesis seeks to respond to potential
criticisms of such a decision. First, to criticisms
based on contractual theory and consideration’s
relationship to the dominant contractual theories
in the common law. Second, to criticisms based
on the necessity of consideration’s perceived
practical role in contract law, using Fuller’s thesis
of consideration as form as an analytical structure.
Also examined are recent developments in
contract which arguably lessen consideration’s
practical utility. Finally, whether a decision
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by the High Court is preferable to Parliamentary
action as a means of reform is discussed.
Ultimately, this thesis argues that consideration’s
threshold role in contract law is not justifiable
on a theoretical or practical basis and that reform
is necessary, whether via court decision or act
of Parliament.
Biography
Paul is a final year Arts/Law student. He is looking
forward to completing his law degree in November,
and then devoting his summer to PLT and cricket.
In 2016 he will begin his legal career in London
as a graduate at Linklaters.
Sarah Sacher
Supervisor: Professor Sarah Joseph
State of Secrecy: Data Retention and Human
Rights
In light of revelations regarding the activities of
the NSA and Australia’s recent metadata retention
program, it is apparent that mass surveillance
of citizens in democracies is a new reality.
Government data retention programs collect
and aggregate personal data for use in the fight
against terror and crime. These programs are
relatively new, evolving with developing technology
– their implications for human rights have yet to
fully crystallise. Due to their indiscriminate and
intrusive nature, data retention programs are
inconsistent with the right to privacy. Moreover,
data retention can indirectly affect rights such as
Freedom of Expression. This thesis also considers
the ‘due process problem’ posed by the secret
nature of mass surveillance measures. In order
for surveillance to be effective in the fight against
terror, programs must retain an element of secrecy.
However, the requirement of secrecy undermines
accountability and oversight mechanisms that are
necessary to prevent abuse and error. Decisions
that affect the personal lives of individuals are
made in secret by executive/bureaucratic bodies,
with the individual excluded from the process
entirely. This thesis concludes that data retention
programs as they currently exist undermine the
rule of law and are not proportionate to the
achievement of legitimate National Security
purposes.
Biography
Sarah is a fifth year BA(English Literature)/LLB
student. She has an interest in human rights law
and aspires to complete further study in the field.
The highlight of her degree was the year she
spent on exchange at Kings College London.
Shamistha Selvaratnam
Supervisor: Dr Maria O’Sullivan
The Responsibility to Protect: Break the Security
Council Deadlock
The paralysis of the Security Council in response
to humanitarian crises is a direct result of the
misuse of the veto power by the permanent
members, whose geopolitical interests have
become an insurmountable obstacle in the face
of such crises. As a result, the Security Council
has failed to uphold its primary responsibility to
maintain international peace and security, as well
as its ‘responsibility to protect’ state populations.
Through a case study of the conflict in Syria,
this thesis demonstrates that the veto power
has become a political instrument, eroding the
legitimacy of the Security Council and raising
doubts over its ability to uphold its responsibilities.
The author contends that the veto power must be
9
reformed to ensure that the Security Council
takes action in situations involving serious
breaches of international peace and security.
This paper critically analyses a veto reform
proposed by France in 2013 to address the
Council’s failure to act, and concludes with
a discussion of the key considerations that must
be taken into account to transform this proposal
into a practical reality. These considerations have
the potential to break the deadlock of the Security
Council, saving the lives of those suffering from
the ravages of conflict.
Biography
Shamistha is a final year Commerce and Law
student with an interest in international human
rights law and international humanitarian law.
She is looking forward to joining Allens
as a graduate in 2016.
Saskia Solopotias
Supervisor: Professor Stephen Barkoczy
Does Australia’s Superannuation Taxation
System Promote Equity? An Examination
of Select Policies
Superannuation aims to enable individuals
to self-fund their retirement, thereby reducing
government spending on age pensions. This is an
important feature of Australia’s retirement incomes
system in light of forecast changes in demographic
structure (namely population ageing and increasing
life expectancy). Savings in superannuation are
incentivised through the provision of generous
taxation concessions, which constitute a significant
government taxation expenditure. Consequently,
it is critical that the taxation of superannuation is
equitable as between high and low-income earners
if it is to increase Australians’ ability to self-fund
retirement and reduce government spending on
age pensions. To this end, this thesis provides an
explanation of the flat taxation of superannuation
(and how this affects individuals in different
marginal income tax brackets), and examines
a number of key policies designed to redress the
iniquities that this taxation gives rise to. These are
then evaluated against the requirements of equity
and the identified objective of superannuation,
in order to answer the thesis question: does
Australia’s superannuation taxation system
promote equity?
been brandished as an alternative approach
to company reorganisation, only to be rebuffed
for its perceived procedural difficulties and
incompatibility with the creditor-oriented mindset
that permeates Australia’s insolvency regime.
After delving into the drawbacks of voluntary
administration, this thesis challenges the
denunciation of Chapter 11 in Australia. It sheds
light on the redeeming features of Chapter 11
that warrant serious consideration in Australia’s
present-day corporate landscape, and parries the
legion of criticism that has been directed at the
procedure. It is asserted that turning to Chapter 11
as a tool for reorganisation and value maximisation
would signal the emergence of a much-needed
corporate rescue culture in Australia, while striking
an acceptable balance between competing
stakeholder interests.
Biography
Ahmed is a final-year LLB/BCom student. He is
a self-confessed cricket tragic who also relishes
any opportunity to travel. After spending this
summer overseas, Ahmed will commence as
a Law Graduate at Arnold Bloch Leibler in 2016. Terrance Tong
Supervisor: Dr Lisa Spagnolo
Strata Titles and By-Laws: Encumbrances and
Obligations Attached
Strata living have been the predominant housing
option in densely populated regions and
landlocked jurisdictions. In Australia, it is becoming
increasingly popular and it brings forth the
pressing need to regulate the rights and obligations
of independent unit owners. While strata law
has developed partly as an ad hoc solution to
overcome the difficulties of existing legal methods
of owning subdivided spaces in a building, the rule
making powers of an owners’ corporation can be
somewhat worrisome.
Presumably, unit owners of a strata scheme
enjoy the same rights as any Torrens landowner.
However, the extensive powers of by-law granted
by the respective strata legislations arguably
eroded the security of title that strata owner ought
to be entitled to. The primary complication is the
unbridled power to pass by-laws that potentially
impinges on proprietary rights is incompatible with
general property law principles.
Having completed the Arts half of her double
degree mid-way through this year, Saskia has
enjoyed delving into her Law electives this
semester: undertaking an externship at VCAT
and writing most of her thesis! In her spare time,
she enjoys climbing mountains and playing 500.
This thesis will focus on the nature of by-laws,
distinguishing between those made at the
inception of a strata scheme and those made
subsequently. It will identify how by-laws, without
sufficient limits, have the potential to affect
proprietary rights. The thesis then recommends
that the power to pass by-laws have to be limited,
with a focus on a consent requirement.
Ahmed Terzic
Biography
Biography
Supervisor: Associate Professor Emmanuel
Laryea
Turning to Chapter 11 to Foster Corporate
Rescue in Australia
For more than two decades, Part 5.3A of the
Corporations Act 2001 (Cth) has remained the
predominant mechanism for corporate rescue
in Australia. However, in recent years its enshrined
voluntary administration procedure has floundered
in the face of legislative inaction. The upshot is
that financially distressed corporations have found
it increasingly difficult to reorganise their financial
affairs, provoking voluntary administration’s label
as a lengthier route to liquidation. Over the years,
Chapter 11 of the US Bankruptcy Code has often
Currently in his final year of his LLB, Terrance
has a keen interest in real estate development
and property law. He enjoys the company of
animals, especially dogs and has an adorable
toy poodle. After an awesome 4 years in
Melbourne, he will be returning to his favourite
sunny Singapore!
Nathan Van Wees
Supervisor: Professor Matthew Groves
The Zone of Interests Test in Australian
Standing Law
The ‘zone of interests’ test forms a part of
standing for judicial review in US law. The test
analyses the aims and purposes of the Act under
which an administrative decision is made.
If the interests of an applicant do not align with
those of the Act, standing is denied. In December
2014, the High Court rejected this test as a part
of Australian law. Was the High Court right
to do so? The answer depends upon two factors:
the nature of legislation itself and the model
of judicial review adopted. The High Court was
right to reject the test insofar as it is used
(as in the US) as a tool of exclusion under
a traditional model of judicial review, or a ‘public
choice’ understanding of legislation. However,
the Court did not address the use of the test
as a means of inclusion in environmental
cases, in which standing rules have diverged
substantially. These cases proceed on alternative
understandings of the role of the courts in judicial
review, and there are good reasons to apply
the zone of interests test in those cases.
The High Court’s orthodoxy in judicial review
has left questions raised by the environmental
cases unanswered.
Biography
Nathan is a sixth year Arts/Law student.
In 2015, he also completed an Honours thesis
in Politics, focusing on the role of compassion
in the thought of Jean-Jacques Rousseau.
Nathan will commence work as a graduate
lawyer with Allens in 2016.
Julia Walker
Supervisor: Dr Kate Seear
Problematisations in Vaccination Policy:
Conscientious Objection and the No Jab,
No Pay Policy
In April this year, the federal government
proposed a policy to end conscientious and
religious exemptions from childhood vaccination
requirements for access to childcare payments
and the Family Tax Benefit Part A end of year
supplement. This thesis analyses the policy
using a framework developed by Carol Bacchi
called ‘What’s the problem represented to
be?’ (WPR). Initially used in the study of policy,
Bacchi’s WPR approach has since been used
to study law and regulation. The presumption in
most conventional approaches to policy-analysis
is that the purpose of policies is to solve social
problems. Bacchi instead proposes a shift in focus
from problem solving to problem questioning,
arguing that policies and laws represent problems
in particular ways, thereby producing or giving
shape to problems rather than addressing them.
By examining how the proposed response
represents conscientious objection as a ‘problem,’
we might better understand how governing is
taking place and the possible implications for
those so governed. In addition, a WPR approach
encourages us to challenge conventional
representations of issues in the hope of opening
us up to the possibility that an issue could be
thought about differently, particularly where
a policy or regulatory response might be seen
to benefit the members of some groups at the
expense of others.
Biography
Julia is a final year Arts/Law student. For her
Arts degree, she completed a major in English
Literature. She has greatly appreciated the
opportunity to attempt to make a contribution
to an area of health law she feels strongly about.
Joshua Yuvaraj
Supervisor: Dr Richard Joyce
When Do Children ‘Participate Actively
in Hostilities’ at International Criminal Law?
The Appeals Chamber of the International Criminal
Court recently upheld the conviction of Mr Thomas
Lubanga for enlisting and conscripting children
under the age of 15 years and using them to
participate actively in hostilities. The reasoning of
both the Trial and Appeals Chambers on the latter
charge depended upon a broad interpretation
of ‘participat[ing] actively in hostilities’. However,
commentators have argued that a) this reasoning
reduces the protection of civilians at international
humanitarian law, making them more likely to be
targeted, and b) that international humanitarian
law does not allow this characterisation.
This thesis contends that a broad interpretation
of the phrase best gives effect to the purpose of
protecting children from use in hostilities, and that
the protection of civilians is not reduced by this
interpretation. However, both Chambers provided
insufficient guidance as to the determination of
activities that fall within the scope of the phrase.
Accordingly, the thesis proposes a number of
potential directions in which the law may develop
to enable clearer and more consistent
interpretations and applications of the phrase in the
future. These directions are aimed at ensuring that
international criminal law most effectively punishes
and deters the use of children in hostilities.
Biography
Joshua is a final year Arts/Law student.
He is extremely interested in international law
and is also writing a research paper on online
piracy. He hopes to publish more papers on
these topics in the future. He hopes to practice
as a commercial intellectual property lawyer.
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Acknowledgements
Honours Convenor
Professor Graeme Hodge
Honours Administrator
Jayne Champion
Conference Organising Committee
Helena Kanton, Rebecca Lew,
Eliza Lockhart, Joshua Yuvaraj
Marketing
Kate Daley
Sponsor
Arnold Bloch Leibler
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