To provide valuable advice to clients in the construction industry, lawyers need an integrated understanding of the legal and technical aspects of this specialised area of practice. This subject is designed to build such an understanding and to expose students to a wide range of construction law-related topics in an interdisciplinary mode. Students will learn about the key legal principles that are specific to construction law (from project inception through to dispute avoidance and resolution) and their interaction with the technical underpinnings of construction practice. In addition to classroom discussion, students have the opportunity to see principles put into practice through construction site visits and detailed case studies.

The subject lecturers bring to the classroom a combined, multi-disciplinary experience of decades in advising clients in the construction industry

A range of topics is covered in an interdisciplinary mode, integrating a detailed case study and site visit. Such topics may include:

• Setting up the project: delivery methods, standard forms, subcontracting, costing, risk mitigation (including insurance and performance security)
• Key technical principles: construction technology, engineering services and structures, geotechnical engineering (including the legal treatment of latent conditions), sustainability and building information modelling
• During the project: contract administration, time and programming, payment, variations, major plant deployment, cost control, dispute avoidance and resolution.

This subject offers an overview of the construction law curriculum, satisfying the pre-requisites for students to pursue further subjects in the construction law program.

It puts key current issues in construction project delivery into their broader context, including contracting and risk allocation modes, regulatory reforms, claims and remedies. The subject examines these issues in the context of the entire project life cycle. A significant focus is upon how construction law in all its forms – common law, statutory, contracts or otherwise – can be sensibly reformed by project parties and their lawyers via collaborative project planning and execution.

Principal topics include:

• Overview of the common law and statutory regimes for construction contracting
• Understanding the drivers of project stress and failure, including analysis of stakeholders, the broader approvals and social context in which projects are delivered and holistic project risk allocation and management in the context of complex current projects
• Contracting: delivery modes, role of standard forms
• Role and liability of superintendents
• Sub-contracts
• Variations
• Quality and defects
• Latent conditions
• Time, programming and liquidated damages
• Contractual mechanisms for payment and security of payment legislation
• Security for performance
• Current approaches to dispute management in major project delivery, including contemporary and innovative approaches to dispute management and avoidance in major projects

Please note: The August offering of this subject will now be delivered fully online.

This subject is designed for construction law students without prior legal training (Construction Law is for students who have a law degree). It provides an overview of the broad spread of the construction law curriculum, from the statutory and common law landscape through legal aspects of project procurement and contracting to dispute avoidance and resolution options. This subject also provides detailed treatment of legal issues specific to construction law such as variations, quality, time and payment. The seminar format is supplemented by exercises to develop students’ skills in contract preparation and writing legal hypotheticals, and includes sessions on construction law research tools and techniques.

Principal topics include:

• Overview of the regulatory regime for construction contracting
• Causes of action in construction disputes
• Contracting methodologies
• Contract administration: standard forms of contract, tendering, contract preparation and minimising legal exposure
• Role and liability of superintendents
• Issues relating to sub-contracts
• Variations
• Quality of work
• Latent conditions
• Time, programming and liquidated damages
• Contractual mechanisms for payment and security of payment legislation
• Security for performance
• Insurance
• Dispute avoidance procedures and alternative dispute resolution
• Construction litigation and arbitration (domestic and international).

This subject is designed to develop and enhance students’ abilities to draft, analyse and administer construction contracts at an advanced level. It does this by reference to three themes.

The first theme is the common law approach to written contracts. This begins with the techniques that courts and arbitrators use to interpret express contractual terms. It extends to the processes that courts and arbitrators follow to determine whether a contract includes any implied terms. This knowledge is vital throughout the life of construction projects, from negotiations, to contract administration, to formal disputes. Students will explore the relevant law by close reference to leading cases from Australia and the common law world.

The second theme is good legal writing. The focus is plain language drafting and its principles of structure, simplicity and clarity. These principles apply to formal contractual drafting, but also to the drafting of contractual specifications and everyday correspondence. There will be opportunities for students to apply these principles.

The final theme is the rigorous study and comparison of standard form construction contracts, including a Standards Australia contract and a FIDIC contract. Students will be expected to take a critical approach to the drafting and risk allocation of each contract. The main areas of risk allocation considered will include:

• Performance security
• Latent conditions
• The superintendent
• Quality and defects
• Time
• Variations
• Payment
• Dispute resolution

Risk and insurance are at the heart of all construction projects, yet their role and detailed provisions are often misunderstood, leading to significant losses and disputation. The already-sophisticated contracting landscape has, in recent years, been made significantly more complicated by the introduction of proportionate liability reforms. This subject will examine these issues with particular emphasis on how risk can be managed to minimise losses.

The lecturers are expert navigators in relation to these complex issues. They have leading-edge expertise in advising on risk, security for performance and insurance in the construction context.

Principal topics include:

• Identifying risk in a construction project and how various industry participants (including principals, contractors, designers, professional advisers, insurers, security providers, and statutory and government authorities) may bear responsibility
• Philosophies and commercial drivers affecting risk allocation in construction contracts and consultancy agreements, and how these are reflected in standard forms
• Security for performance mechanisms, including cash retentions, unconditional undertakings, parent guarantees, insurance bonds, adjudication bonds and other instruments
• Insurance products available to the construction industry (including public liability, works insurance and professional indemnity insurance) and the law relating to them, including regulation by legislation, common law principles and treatment under standard-form construction contracts and consultancy agreements
• Proportionate liability regimes (including Part IVAA of the Wrongs Act 1958 (Vic)) and their impact on contract risk allocation.

Payment has always been at the heart of construction contracting, and payment disputes have been—and remain—at the centre of construction law case law. This subject aims to provide students with a detailed understanding of the contractual procedures for payment and associated issues such as set-off. Its major focus is upon the ‘security of payment’ reforms of recent years. This state and territory-based legislation was designed to simplify the payment stream and disputation yet, in practice, has spawned hundreds of court cases, further complicating the contracting landscape for construction projects. The lecturers are based in the two states that have been at the forefront of the reforms—Queensland and New South Wales—and are therefore well-placed to guide students through this area of law.

Principal topics include:

• Payment processes under construction contracts, including treatment under standard forms and the impact of the security of payment legislation enacted in various jurisdictions
• History and policy underpinnings of the security of payment legislation, including comparison of the regimes in Australia, the United Kingdom and New Zealand
• Processes to resolve payment disputes, including those under security of payment legislation (with detailed consideration of bases for judicial review of such processes)
• Associated issues, including set-off, securing payment to workers and subcontractors, and means of dealing with the consequences of late payment.

Construction projects produce difficult legal issues. Practitioners need to be confident in their understanding of the remedies available under various causes of action. Construction law requires a sound knowledge of relevant case law and legislation concerning diverse matters, such as damages in contract, recovery in tort for pure economic loss, penalties (including liquidated damages), quantum meruit, remedies under the Australian Consumer Law and the grant of interlocutory injunctions.

In addition to the primary lecturer, this subject harnesses the specialist expertise of guest lecturers, including leading academic lawyers, legal practitioners and judges. Their combined experience draws not only on their rigorous understanding of black letter law, but also on extensive practising careers.

Principal topics include:

• Damages for breach of contract
• Penalties (including liquidated damages)
• Equitable remedies for breach of fiduciary duty
• Proportionate liability
• Temporary injunctions
• Recovery in tort for pure economic loss
• Remedies under the Australian Consumer Law
• Quantum meruit claims

Delay and disruption are endemic in the construction industry and lead to time and cost overruns. No construction project or construction professional is immune to the effects.

When delay or disruption occurs, the issues of establishing the parties’ respective liabilities and entitlements, quantifying the period of delay, the effects of disruption, and the quantification of the resulting financial loss in accordance with the contract and applicable law is complicated.

This subject is designed to give students an advanced and integrated understanding of the law in relation to delay and disruption in construction and engineering projects in Australia and internationally.

Principal topics will include:

• Delay and disruption – the distinction
• Extensions of time regimes and liquidated damages (including cross-jurisdictional perspectives and reform opportunities)
  
  • Purpose and benefit of an extension of time
  • Notices
  • Time at large
  • The prevention principle
  • Float
  • Types of delay
    
    • Non excusable
    • Excusable non-compensable
    • Excusable compensable
    • Concurrent delay
• Delay analysis
  
  • What is delay analysis?
  • Methods of delay analysis
• Quantification of loss caused by delay
  
  • Direct additional costs
  • Preliminaries / site overheads
  • Off-site / head office overheads
  • Loss of profit
  • Inflation
  • Finance charges / interest
  • Interest
• Quantification of loss caused by disruption
  
  • What is disruption?
  • Entitlement to payment for disruption
  • Methods to assess loss caused by disruption
  • Acceleration
• Record keeping in relation to delay and disruption, including deployment of modern technologies
• Global claims for delay and disruption
  
  • What are global claims
  • Are global claims permissible
  • Causation based on inference
  • Proving a global claim

The subject lecturers are highly experienced and respected. They bring to the classroom extensive experience in the investigation, analysis and resolution of delay and disruption matters. Robert Gemmell acts as an expert witness and expert determiner and is the author of a leading Australian and international textbook on delay and disruption. After many years in practice as a construction law barrister, the Hon Peter Vickery QC served for 10 years as a Justice of the Supreme Court of Victoria, including as the Judge-in-Charge of the Court’s Technology, Engineering and Construction List.

The delivery of major energy and resources projects is an organic process which involves multifaceted interactions with the law. In this subject, students will gain insights into the way that advising on such projects involves navigating an often-challenging intersection of construction and regulatory systems, drawing on aspects of property law, environmental law, native title, finance, banking and commercial law.

Students will also engage with the need for reform in major project delivery, with the cost of project delivery in Australia already prohibitive and globally uncompetitive.

The subject will examine how major energy and resources projects are defined, designed, structured and developed, the pressure points for successful and cost-efficient project delivery in Australia, and the areas where conflicts and disputes emerge and how they are managed.

Principal topics include:

• Project scoping from feasibility to design, including examination of recent studies on procurement practices and a simulated workshop on feasibility models, risk analysis and front-end engineering and design (FEED)
• Overview of regulatory approval frameworks for major project delivery in the energy and resources sector, including a case study-based discussion of the interaction of such frameworks with construction document development and management
• Project delivery models and frameworks in the energy and resources sector
• Examination of leading causes of project stress and failure, including the need for proactive forensic planning
• Interactive case study where students collaboratively examine particular aspects of project design and execution
• Current approaches to dispute management in major project delivery, including exercises examining common problems encountered in drafting dispute resolution clauses in project documentation, as well as a discussion of contemporary and innovative approaches to dispute management and avoidance in major projects.

Construction industry personnel and their lawyers are increasingly aware of the need to anticipate the legal implications of communication and ‘issue management’ throughout the project life cycle. Therefore, this subject aims to equip industry professionals and lawyers with the skills necessary to identify and proactively manage legal risk during the procurement and delivery phases. Complementing other subjects within Melbourne Law School’s construction law program that examine legal risks and their management, this subject provides practical insights into key aspects of the legal/project interface, including tendering and contract preparation procedures that efficiently ‘document the deal’ and contract administration techniques that minimise disputation.

The subject lecturers are practising lawyers who have substantial expertise and experience in advising during the various phases of a project, enabling students to develop an advanced and critical understanding of this specialised area of law.

Principal topics include:

• An exploration of the concept of legal risk and how it manifests in construction projects
• Project inception, including project feasibility and financing
• Procurement model selection and alternative contracting models and an analysis of the pillars of success in relation to each of the procurement models
• An analysis of pre-tender documentation, including consortium and joint venture agreements; an analysis of tender documentation including expressions of interest and requests for tender; and an analysis of the considerations when responding to a request for tender
• Legal risks to be managed during the pre-tender and tendering phase
• Analysis of the key project risks and their allocation and adoption between a contractor and client under a construction contract, as well as an introduction to qualitative and quantitative risk assessment
• Analysis of the key features of a construction contract and the negotiation positions available to a contractor and client in negotiating a construction contract (this will include consideration of alternative approaches and legal risks to be considered by contractors and clients in the negotiation of these obligations)
• The interface between the project management and legal disciplines, including a consideration of the ethical dilemmas that confront construction professionals
• Risk identification and mitigation strategies employed during the delivery phase and their role in avoiding unnecessary disputation
• Administering (making and assessing) claims for time and cost under construction contracts
• Managing sub-contract and interface risk (including a consideration of building information modelling (BIM))
• Managing the ‘paper war’ during the delivery phase: gaining, keeping, sharing and losing privilege in communications on and off site
• Managing defects to the works: reaching completion and post-completion issues
• A consideration of the practicalities of construction dispute resolution.

Private sector involvement in the financing, delivery and operation of public infrastructure is nothing new; it is, however, constantly evolving. The public appetite for social and economic infrastructure is insatiable, yet must constantly be tempered by economic constraints. Alongside the increasingly sophisticated and internationalised market for funding and technical capacity, there has been in recent years a renewed focus upon the policy bases for public private partnerships (PPPs) by governments and the broader community. Navigating all this in its legal context is one of the great ongoing challenges faced by the infrastructure industry and its legal advisers. This subject, taught by a leader in the field who brings a wealth of experience to the classroom, is designed to equip students to respond to this challenge.

Principal topics include:

• Historical perspectives on private involvement in the delivery of public infrastructure, how it has changed over time and lessons learnt.
• The PPP family, and the different categories of PPPs within the family.
• The differing objectives of the various participants in a PPP.
• The benefits and challenges associated with privately financed PPPs, and how PPPs can be improved.
• The role of Australian governments (Federal, State and Territory) in PPPs. How PPP policies fit within the broader government policy framework for investing in and managing infrastructure assets.
• The role of government in developing nations in creating a PPP enabling environment.
• Funding and financing mechanisms, including government funding, private finance and value capture.
• PPP risk allocation.
• The matrix of contractual documents required for a privately financed PPP, including Government Project Agreements, Debt Financing Document, Equity Documents, Sub-Contracts, Tripartite Deeds, Interface Agreements and the like.
• The procurement process for PPPs, including how to manage a PPP bid.
• Dispute resolution on PPP projects, including linked claim provisions and equivalent project relief provisions.
• Other legal issues unique to PPPs including the legal enforceability of abatement regimes, the application of security of payment legislation, ipso facto provisions, transparency and disclosure obligations.
• Managing PPP contracts through the delivery, operation and handback phases.

Every year, about half of the value of construction activity in Australia relates to the construction and renovation of dwellings. The law relating to this activity is complex and multi-layered, involving difficult policy questions and significant statutory and regulatory intervention. These impact throughout the community. Despite this, residential construction law has, until recently, received relatively little attention from the majority of construction law practitioners. This subject seeks to address this deficiency and introduce students to an evolving area of construction law in a comparative context. Its focus is on Australia (primarily Victoria) but perspectives are offered from other members of the common law family of legal systems. The subject lecturers are Dr Matthew Bell (whose recently-awarded PhD was on residential construction regulation) and Suzanne Kirton (Senior Member, VCAT, with extensive practising experience in residential construction law).

Principal topics include:

• The regulatory problem of residential construction
• Common law rights and remedies
• The legislative and regulatory response
• The contractual matrix for residential construction
• Key issues in bringing residential construction claims
• How a residential building dispute is resolved in Victoria

Cross-border construction contracting, and the avoidance and conduct of international construction disputes, has a distinctive character and content.

Lawyers and industry professionals need to be familiar with the differences between legal systems and the impact of statutory law, the key issues in the international financing and procurement of projects, the range of standard form international contracts available for various delivery methodologies, along with the intricacies associated with those processes in an international context.

As well, this subject provides detailed treatment of both dispute avoidance techniques used in international projects and an introduction to the principles and practice of international arbitration in the construction context.

The lecturers, Dr Donald Charrett and Sharon Vogel, have extensive experience in aspects of international procurement and dispute resolution.

Principal topics include:

• Discussion of the key differences between common law and civil law, and how they impact on the practice of construction law in different jurisdictions
• The role of statute law applicable to the construction site, such as security of payment and mechanics’ lien legislation
• Key issues in the financing and delivery of international construction projects, including alternative financing such as PPP
• Analysis of international construction contracts including an examination of contracting models and standard-form contracts for international construction projects (including the International Federation of Consulting Engineers (FIDIC) suite)
• Key elements of contractual risk allocation including project security (bonds, letters of credit, and guarantees), insurance, regulatory risks, political risks, etc.
• An examination of international bodies dealing with the determination or resolution of international construction disputes
• An introduction to the jurisdictional, applicable law and procedural framework for the prosecution, determination and enforcement of construction disputes through international arbitration
• Identification and consideration of contractual and extra-contractual alternative dispute resolution (ADR) and dispute avoidance procedures (DAPs) in the context of international construction.

This subject provides a broad overview of the range of dispute resolution options available to parties in relation to construction disputes, as well as detailed insights into the practical aspects and policy drivers of these options. It provides an opportunity to understand how to efficiently conduct construction dispute procedures in various Australian courts, arbitration (both domestic and international) and expert determination. It also engages with key industry debates about the rational reform of dispute processes in Australia and internationally. The lecturers bring extensive dispute resolution expertise to the subject and have been involved in many of Australia’s most significant construction-related disputes.

Principal topics include:

• Practice and procedure in the Supreme Courts of New South Wales and Victoria and the Federal Court of Australia, considering differences and assessing where best practice lies
• Evidence for construction cases—how to identify what is necessary for the principal claims that arise in construction cases (eg variations, delay, prolongation and latent conditions claims)
• Special issues relating to expert evidence and practical issues arising from the rules of evidence
• Pleading claims
• Problems with discovery and how they may be solved (this involves a review of the policy considerations that underlie the recent changes to the Federal Court Rules and the Victorian Supreme Court Rules, as well as practice in international arbitration)
• Managing the trial or hearing so that it is as efficient as possible
• The appeal process that is available
• The domestic arbitration legislative framework: how it can be used to improve the efficiency of dispute resolution
• Issues of proof in complex disputes, focusing on delay and disruption claims.

This subject is explicitly aimed at enhancing students’ ability to make a significant contribution to the ongoing development of construction law in Australia and overseas. The emphasis is on analysing and testing cutting-edge case law, commentary and other legal developments in the classroom and via research papers.

In addition to the core areas of time (including delay claims methodologies), workscope/variations, defective work and security, detailed treatment is given to extra-contractual remedies such as those under the Australian Consumer Law and those based on unjust enrichment and negligence.

This subject is held in Sydney, New South Wales.

Principal topics include claims in the following categories:

• Time: risk allocation, delay, liability for delay, extensions of time
• Methods for assessment of delay
• Concurrency, causation, damages and additional cost, assessment and analysis
• Prevention and liquidated damages: recent developments
• Scope of work: variations, adjustments under the contract
• Quality: measure of quality, identification and breach of required standard
• Assessment of quality and damages
• Security: for performance and for payment, access to security
• Australian Consumer Law: application in construction, tender documents
• Passing on of misleading and deceptive documents, unconscionable conduct, remedies
• Interpretation of contracts
• Equitable remedies
• Restitution: unjust enrichment, statutory exclusion, quantum meruit
• Payment: progress payments—certification and adjudication
• Negligence in construction.

Dispute resolution and problem-solving lie at the core of modern professional life for lawyers, business people and anyone who works with more than one other person. This subject provides an overview of the range of dispute resolution techniques used internationally. This subject differentiates the most prominent dispute resolution methods, including traditional litigation, arbitration (in its many forms, including international commercial arbitration negotiation) and mediation (also in its many forms, including partnering, mini-trials and dispute resolution coordinators). It also includes skills training in negotiation and mediation, designed to increase effectiveness in both resolving disputes and enhancing problem-solving abilities.

Principal topics include:

• The nature and varieties of disputes, how they arise and how they are avoided
• The options for resolving disputes: litigation, arbitration, negotiation, mediation and conciliation
• Factors considered by people when they choose a dispute resolution method, including social, cultural and economic factors
• Relevant law reform initiatives, with an emphasis on Australia, other common law countries and selected Asian countries
• Cross-cultural issues in the dispute resolution process
• The roles of judges, lawyers and the courts in the alternative dispute resolution process
• An analysis and comparison of the dispute resolution processes in environmental and native land title disputes, with an emphasis on Australia, Canada and the United States
• Basic skills for successful negotiation and mediation, including theory and practical exercises.

Australia has a detailed and comprehensive consumer protection regime dealing with the supply of goods and services, including financial products, to consumers. Primary legislation is the Australian Consumer Law (ACL), found in Schedule 2 of the Competition and Consumer Act 2010(Cth); equivalent provisions in the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) applying to financial services and products; and, for consumer credit, the National Consumer Credit Protection Act 2009 (NCCP Act). This subject provides students with a detailed knowledge of key features of the consumer protection regimes underlying the supply of goods, services and credit to consumers, along with the common law principles and policy imperatives that underpin these regimes. The lecturers include one of the Law School's private lawyers with specialist expertise in consumer law, and a leading practitioner in this field of law.

Principal topics include:

• Purposes of consumer protection law
• The regulatory toolkit
• Common law doctrines underlying the legislative regime
• Enforcement and remedial strategies.
• Key consumer protection regimes under the ACL, ASIC Act and NCCP Act:
  • Misleading or deceptive conduct
  • Unconscionable conduct
  • Interest rate caps and responsible lending
  • The specific regulation of small amount loans
  • Unfair contract terms.
  • Consumer guarantees and implied terms

This subject examines the fundamental principles under Australian law relating to the provision of credit by financiers to borrowers. The subject has as its focus the legal design of key secured financing transactions and the chief means by which financiers manage the risk of a borrower’s default or insolvency. The topics covered range from 'vanilla' loans supported by security interests and guarantees to more complex title-based transactions, including assignments, leases and securitisations. The subject also discusses the Australian Personal Property Securities Act.

This subject is a preparatory subject for the more specialised subjects in the Banking and Finance Law program.

Principal topics include:

• The financier–borrower relationship and key governance issues in banking and finance transactions
• Building blocks of banking and finance transactions
• Law relating to guarantees and security interests
• Legal design of more complex banking and finance transactions

This subject focuses on skills and strategies that are key to negotiating, swaying and influencing counterparties in business negotiations and deal-making. In this subject, skills will be developed by constantly improving as business negotiators by asking the right questions, framing issues, gaining lessons learned, defining success metrics and negotiating with others with different skill-sets, perceptions and backgrounds. The subject will have a particular focus on negotiations in cross-border settings. The teacher is a leading expert in negotiation training, having taught and researched at prestigious institutions such as Berkeley, Stanford and Harvard, and trained executives at some of the world’s largest companies. He will draw on both real-world transactional and academic experience in leading the subject.

Principal topics and skills include the following:

• Understand why conflict arises between people and business organisations, within both a domestic and international context
• Assess and apply various strategic frameworks in diverse settings (business-to-business, private-public sector, etc)
• Define specific success metrics within diverse teams and groups before, during and after business negotiations and deal-making settings
• Apply and leverage the main conceptual frameworks related to transaction planning and conflict resolution within diverse environments - including distributive, integrative, and mixed motive negotiation styles (among others)
• Analyse and synthesise business negotiation theories, skill-sets and studies as current or future business negotiation professionals
• Recognise implicit and explicit biases and nudges that may hinder or help business negotiations, while developing strategies on how to bridge and create value from such gaps
• Develop, and learn how to continually develop, a value-added business negotiation toolbox and confidence as business negotiators and deal-makers
• Understand key contractual terms that may pivot business negotiators and negotiations
• Enhance effective communication skill-sets, both verbal and nonverbal, and develop an empathetic understanding of how and why counterparties may see things differently from you and your business unit
• Possess an overall understanding of the nature of disputes and conflict resolution, including ethical, cultural, economic, psychological and emotional factors.

Technology and automation are reshaping the landscape of many industries, and the legal industry in all practice areas is seeing the impacts of these changes. Contracts form part of our daily lives as consumers and as legal practitioners, yet in many ways agreements we sign today are very similar to ones we signed hundreds of years ago.

How might we re-design contracts so they are readable and understandable for all the people that use them, and not just lawyers? Can we craft contracts that work for computers and humans? Would increasing readability have an impact on the bottom line of a business?

This subject explores these ideas and encourages students to think about new ways to design contracts in the era of automation. We examine the legal requirements of electronic contracts, ways to increase contract readability, how to plan a contract redesign project, developing effective processes, identify targets for automation and introducing visual elements to contracts.

Students will identify and evaluate appropriate automation technology for their client and contract needs, develop skills to interpret instructions and gather user input for contract design, and will get hands on experience in generating an automated document and process.

The subject will also explore the legal and ethical issues surrounding a lawyer’s duty of clear communication and the duty to act in the best interest of a client. Students will develop advanced critical thinking skills and knowledge of the legal issues arising from electronic contracting. Recent legal developments in this field will be explored.

Principal topics will include:

• Introduction to contract automation and design
• Duty of clear communication and values based contracting
• Contract document redesign
• Electronic contracting and the law
• Contract process redesign
• Technology for automation

Contract interpretation is one of the most important topics in commercial law. In recent years, interpretation disputes have come to dominate contract litigation. Because views can differ as to basic questions — such as whether particular words have a plain meaning, and what 'commercial sense’ dictates in a given situation — the outcomes of these cases can be difficult to predict. This subject will study the core principles of contract interpretation in Australian and English law. It will also examine the closely related principles concerning implied terms, rectification and estoppel by convention. Current issues and controversies will be considered. The common law approach to contract interpretation will be compared with those adopted in important international instruments such as the United Nations (UN) Convention on Contracts for the International Sale of Goods. The lecturer is a former commercial practitioner who has taught contract law for many years and has published widely on relevant topics.

This subject will examine the principles governing the interpretation of commercial contracts, and the closely related principles concerning implied terms, rectification and estoppel by convention.

Principal topics include:

• Contemporary approaches to interpretation
• The availability and relevance of extrinsic evidence
• Comparison between the common law principles of contract interpretation and those of international instruments such as the UNIDROIT Principles of International Commercial Contracts
• The role of contractual purposes
• The role of commercial commonsense
• Plain meaning, absurdity and unreasonableness
• The interpretation of limitation of liability clauses
• Implied terms
• The equitable remedy of rectification
• Estoppel by convention

Contract is central to the legal regulation of most commercial and economic activity, and underlies many specialist areas of legal practice. As market costs and values move, many contracts become increasingly valuable to one party and burdensome to the other. One party’s ability to terminate, or to successfully resist the termination of, a commercial contract is frequently a matter of considerable financial importance. The complex interaction between common law termination rights and rights to terminate expressly conferred by clauses in the contract in question is seldom properly understood, as illustrated by many of the cases from which this subject is taught.

This subject is taught from selected cases rather than textbooks. Principal topics include:

• Breach of conditions, including what makes a promissory term a strict condition
• Non-fulfilment of conditions precedent, and associated promissory obligations
• Breaches of intermediate terms, and what makes them sufficiently serious to justify termination
• Repudiation in its different forms
• Breach of time obligations, and the use and consequences of Notices to Perform/Complete
• Express termination clauses—the different principles concerning their operation, and ‘compare and contrast’ the principles concerning termination at common law
• Possible limits on an aggrieved party’s right to terminate through:
  • Election/affirmation
  • Estoppel
  • Breach or an absence of readiness, willingness and ability to perform on his/her own part
  • Relief against forfeiture
• Remedies accompanying effective or attempted terminations, including:
  • Principles of quantifying expectation damages at common law
  • Limited rights to damages on termination pursuant to an express clause
  • Contractual rights to remuneration accrued due prior to the termination
  • Exceptional limitations on the recoverability of contractual remuneration.

This subject introduces students to the fundamentals of the law of contract in common law jurisdictions, with a particular focus on English and Australian law. It offers a grounding in the foundational principles of contract law as well as insights into current issues and influences on the development of the law. The subject also offers the opportunity to develop deeper insights into the law of contract and common law method. It lays the foundations of knowledge and skills necessary for the study of more specialised subjects and for the exploration of particular contract issues and problems that arise in practice.

The lecturer has taught contract law for many years and has published extensively in the area.

Topics to be covered, principally through a series of case studies, include:

• Principles of contract formation: agreement; intention to be bound; consideration; certainty
• The doctrine of privity of contract
• Terms of the contract: express and implied terms; written contracts and their interpretation
• Vitiating elements: misrepresentation; mistake; duress; undue influence; unconscionable bargain
• Discharge of contracts: breach; frustration
• Remedies for breach of contract: damages; specific performance

In Design for Innovation students have the opportunity to rethink and redesign how the law operates and engages with clients and the community by placing the user at the centre of the design process.

Design is the process of creatively and strategically solving problems. Human‐centred design maps out the user’s journey to find the most challenging problems, placing the people with the problems at the centre of the solution. It has become a powerful tool to deploy in the pursuit of making better services and products. Its role in the legal sector is emerging and it is already making breakthroughs in the delivery of government services and private practice.

This subject explores the principles of human‐centred design, including the collaborative process – empathising with users, ideation, prototyping and user‐testing. It is both theoretical and practical, providing students with ongoing tools and techniques to deploy in pursuit of solving problems and delivering better services. Challenging the traditional notion of ‘lawyer as expert’, it asks students to adopt a different, human‐centred and collaborative perspective on problem solving through design. Students will have the opportunity to work on real world issues relevant to their work place or practice interests.

The lecturers in this subject combine years of experience in this area, sharing a commitment to solving complex legal problems using human‐centred design.

The frequency and severity of ‘natural’ disasters, like bushfire, flood, and cyclones/hurricanes, and longer term phenomena, such as drought and sea level rise, will increase as a result of climate change; posing major threats to settlements, infrastructure, resources and biodiversity. Disasters related to human health pandemics, such as COVID-19 have major health and environmental impacts. Largescale industrial accidents, such as mining infrastructure failures may cause loss of life and widespread environmental damage. This subject covers the multi-scalar legal response to disasters involving international treaties and soft-law instruments, national and regional regulation (including state of emergency powers), and private law (torts and contract), as well as encompassing climate change adaptation, emergency management, environmental liability, insurance and human rights. It will examine approaches to prepare for, avoid or minimise disaster impacts, and to respond effectively and equitably post-event. Relevant case studies are drawn from Australia and various comparative jurisdictions regionally and internationally.

This subject critically examines different legal approaches to avoid, mitigate and respond to disasters and relevant adaptation planning, emergency, health and natural resource management regimes.

Principal topics include:

• An overview of disasters and climate change impacts, focusing on predicted changes to the frequency, intensity and geographical occurrence of hazards, and impacts on human settlements
• An overview of the environmental and natural resource management impacts of human pandemics and the relevant legal responses
• Examination of the types of public and private planning and legal mechanisms at the local, state, national and international scale relevant to disaster management
• International agreements and soft law, with case studies of their application to recent disaster events (e.g. liability regimes for oil and gas disasters and mining incidents; funding mechanisms for disaster risk reduction; instruments for the protection of persons in disasters)
• Emergency management and adaptation planning in Australia, with selected case studies including: coastal management and land-use planning regimes; bushfire responses: Victorian land-use planning, emergency management and recovery, and relevant compensation law for the 2009 bushfires, and federal responses to the 2019-2020 bushfires; Flood, Hurricanes and Tsunamis: statutory planning, and insurance regimes in Queensland and in the USA, and liability and compensation regimes in Japan; Drought: emergency water allocation management in Australia and Africa, and the legal frameworks for managing animals and ecosystems impacted by disasters
• Pandemic disaster laws and management in Australia and selected comparator countries
• Industrial and resource extraction disasters and relevant laws in Australia’s offshore and in comparative case studies, such as the Deep Sea mining and petroleum extraction.
• Comparative case studies in developed and developing countries, evaluating the transferability of legal principles (e.g.; coastal adaptation planning instruments in the US and UK; and typhoon readiness in South East Asia, and pandemic waste disposal management internationally).

Employment contracts have been a major source of litigation in recent years, with some cases leading to very large payouts. This subject examines the evolving law of employment contracts, and other related kinds of personal work contracts. Drawing on recent cases as well as leading articles by Australian and international scholars, the lecturers consider several key questions. These include determining and varying contract terms, employer and employee duties, non-compete clauses, termination and damages. The subject also looks at the interaction between employment contracts and major statutes, such as the Australian Consumer Law and the Fair Work Act 2009 (Cth). The subject seeks to combine discussions of the practical realities of contracting with a broader analysis of the underlying assumptions in current law.

Principal topics include:

• The scope of employment regulation: which work relationships are covered?
• The regulation of independent contracting, such as agency relationships
• The content of the employment contract: express terms
• The content of the employment contract: implied terms
• Non-compete clauses and restraint of trade
• Employment, the Competition and Consumer Act 2010 (Cth) and estoppel
• Variation and flexibility in the employment contract
• Termination and remedies at common law
• The relationship between contracts, awards and agreements.

Adequate, reliable and sustainable supplies of energy are crucial to modern societies, and their assurance demands the close and continuous involvement of governments. This subject explains the challenges—affordability, security of supply, safety, control of monopoly, sustainability in an age of global warming—that the economic and technical characteristics of different energy sources present to governments in Australia, and analyses the regulatory tools that they have at their disposal for responding to such challenges. It shows how the law can function both as an essential vehicle for such regulation and as a constraint on its content. The lecturer is a leading international authority on oil and gas law and has published extensively in the field of regulation.

Principal topics include:

• The nature of regulation, its development in Australia and its relationship with law
• General explanations and justifications for regulation
• The techniques of regulation
• Regulatory issues posed by the supply of different types of energy:
  • Mineral energies: coal, petroleum and uranium
  • Network energies: electricity, gas
  • Renewable energies
• The Australian federal environment for energy regulation. Two or more case studies of Australian energy regulation:
  • Electricity and gas: from state monopolies to regulated national markets
  • Mined energies: securing effective exploitation, managing resource conflicts
  • Renewable energies: regulatory incentives
• Cross-cutting issues in energy regulation:
  • Regulatory authorities
  • Forms of regulation: prescription versus goal-based regulation; discretion versus rules; legislation versus contract
  • Regulatory review and evaluation.

Environmental law deals with pressing legal and social issues within Australia and internationally that range from biodiversity protection to waste reduction. This subject provides an overview of fundamental environmental law concepts and principles, such as the precautionary principle. It charts the evolution of Australian environmental law in response to global environmental challenges, such as climate change, as well as national regulatory reforms. The subject equips students with a thorough grounding in environmental impact assessment law by reference to the Environment Protection and Biodiversity Conservation Act 1999 (Cth). It examines the regulatory tools and approaches relevant to pollution control and ecological protection– including market mechanisms and offset models. This subject introduces international environmental law; dealing with issues such as trans-boundary harm and World Heritage protection, that have shaped Australian environmental law.

Principal topics include:

• The scope of environmental law – nationally and internationally – including transboundary regulation.
• The multidisciplinary character of environmental law and regulation that needs to respond to complex, multilevel environmental problems.
• The diversity of environmental law approaches from the common law through direct regulation to market measures and community engagement.

These themes are illustrated by case studies in the following areas:

• Environmental law: Principles and concepts
• Environmental actors, including public interest litigation with a focus on biodiversity protection
• The procedures and substantive law governing impact assessment and development approvals.
• Legal and regulatory tools used in environmental law, including duty of care concepts in pollution laws.
• The interaction of law and science, with a focus on the precautionary principle
• Implementation, compliance and enforcement in Environmental Law
• International environmental law, including biodiversity protection, world heritage cases and climate change governance.

This subject provides an introduction to the global law relating to international commercial contracts. A major focus will be on contracts of sales, as codified by the Vienna Convention on the International Sale of Goods (CISG). However, some issues of the general law of contract will also be covered in detail (eg formation, interpretation, third party rights, the duty of good faith and fair dealing). The treatment of some of these topics will be based on an examination of the 2016 UNIDROIT Principles of International Commercial Contracts (PICC). The approach is comparative. Examples will be drawn from the decisions of national courts as well as arbitral awards.

Principal topics include:

• Global commercial contracts
• Applicability and application of the CISG and the PICC
• Interpretation and supplementation of the CISG and the PICC
• Contract formation
• Interpretation of international commercial contracts
• Third party rights
• Obligations of sellers and buyers
• Contractual remedies
• Good faith and fair dealing
• Transnational commercial dispute resolution.

Information technology is critical to almost all modern organisations and processes. The development, acquisition and use of such technology raises a myriad of complex legal issues extending beyond conventional contractual issues and includes ownership rights, rights of use and risk management. This subject explores those issues with a particular emphasis on contracting and intellectual property issues associated with the development and sourcing of information technology products and services. Both lecturers are information technology lawyers who have had extensive practical experience acting for both providers and purchasers of such products and services.

Principal topics include:

• Overview of information technology and the Australian information technology development industry
• Alternate dispute resolution of information technology disputes
• Roles and relationships of the various parties to information technology agreements
• Copyright protection afforded to technology products and services, including online products and services
• Open source licensing arrangements
• Patent protection afforded to information technology products and services
• Employees and contractor rights and obligations in the context of the creation and development of information technology
• Software creation, development and exploitation
• Cloud services: risks and liability
• Database and content management issues
• Privacy issues associated with the development and use of information technology goods and services
• Risk allocation and management of information technology contracts (including insurance and escrow arrangements).

This subject is a basic 'how-to' on international business transactions and is essential for those wishing to practise international trade law. The subject intentionally covers a vast array of related topics, with the focus being on the legal issues faced by practising lawyers in the field. Particular emphasis is placed on issues such as trade terms, international sales of goods, documentary credits, carriage of goods, customs and border regulations. This subject also considers several issues relating to international trade, such as intellectual property rights, licensing, franchising and governmental measures regulating investment. Such coverage ensures students are exposed to the most important and frequent issues facing the practising trade lawyer.

Principal topics may include:

• Basic trade contracts and common trade terms
• Choice of law and choice of jurisdiction in international trade contracts
• The Vienna Convention on International Sale of Goods
• Payment systems, including documentary credits and collections
• Customs law, including classification and valuation of the goods
• Import and export restraints
• Regulatory issues and red tape
• Franchising
• Intellectual property rights, including parallel importation of goods
• Foreign direct investment.

International commercial arbitration is the most important method globally for resolving cross-border commercial disputes. The focus of this subject is on the basic principles of international commercial arbitration law and is taught from the perspective of both the practitioner advising clients and the scholar interested in advanced research. There will be a particular focus on the desirability of arbitration compared with other dispute resolution methods, the relationships between the courts and arbitrators, drafting techniques and developments in Australia and other countries.

Principal topics include:

• The nature of international arbitration
• Applicable law in international arbitration
• The Australian procedural regime and an introduction to the UNCITRAL Model Law
• Enforcing international arbitration agreements
• Appointment and qualifications of arbitrators
• Misconduct of arbitrators
• Privacy and confidentiality
• Enforcement and challenge of awards.

This subject introduces the techniques and institutions used to manage and resolve international disputes, focusing on both diplomatic (negotiation, mediation, inquiry, and conciliation) and legal (arbitration and judicial settlement) methods. Students will explore historical and topical examples to analyse when, how, and with what effect states, corporations, and individuals have resorted to different forms of international adjudication or arbitration to settle disputes, and consider the extent to which powerful states such as China, France, Russia, the UK, and the US have embraced international dispute settlement. The subject provides detailed analysis of the jurisdictional, procedural, and compliance issues that have arisen in classic and current cases across various substantive areas of international law, including investment, trade, environment, human rights, nuclear testing, the law of the sea, the use of force, and territorial sovereignty. Students will become familiar with different dispute settlement bodies and mechanisms, including the International Court of Justice, investor-state dispute settlement mechanisms, the dispute settlement systems established by the World Trade Organization and the UN Law of the Sea Convention, regional human rights courts and tribunals, and dispute settlement under the Chinese Belt and Road initiative. We will conclude by examining and identifying emergent trends in and challenges to international dispute settlement.

Principal topics include:

• The broad historical and political context of international dispute settlement
• The international obligation to settle disputes by peaceful means
• The role of diplomatic procedures, such as negotiation, mediation, and conciliation
• The International Court of Justice, including issues involving state consent to jurisdiction, reservations to the optional clause, the evaluation of scientific evidence, and the Court's advisory jurisdiction
• Investor-state dispute settlement, including issues relating to jurisdiction, the use of precedent, and the recognition and enforcement of awards
• WTO dispute resolution procedures and the challenges facing the Appellate Body
• Dispute settlement under the UN Law of the Sea Convention
• Regional human rights courts and tribunals
• Dispute settlement under the Chinese Belt and Road initiative
• Backlash against and reform of international dispute settlement mechanisms

This subject addresses the relevant provisions of the key federal statute governing minimum employment standards in Australia, the Fair Work Act 2009 (Cth), which is the centrepiece of Commonwealth statutory regulation of working conditions. The subject examines the mechanisms by which minimum wages, working hours regulation and leave entitlements are set and reviewed, as well as the function and content of these standards. This subject also addresses the important topic of how compliance with labour standards can be enforced and considers issues such as the role of the Fair Work Ombudsman, and the challenge of enforcement in the context of different business models, such as franchise networks.

Principal topics include:

• The scope of the national system of labour regulation
• The institutions that regulate labour standards and working conditions, including the Fair Work Commission and the Fair Work Ombudsman
• The role and content of the National Employment Standards (NES) as a means of maintaining a safety net of fair working conditions
• The form, function and content of modern awards as a mechanism for setting further minimum labour standards at an industry and sectoral level
• The relationship of modern awards and the NES to other means of regulating working conditions, including the contract of employment and enterprise agreements
• The legal mechanisms and sanctions relating to enforcement of minimum labour standards and working conditions by employees, unions and the Fair Work Ombudsman
• The administrative sanctions available to the Fair Work Ombudsman
• Emerging issues and innovative approaches in regulating and enforcing labour standards and working conditions, including protection of vulnerable workers such as interns, casual and part-time workers and outworkers, extra-territorial coverage of labour standards, regulation of work/life balance, and developments in labour standards arising out of the COVID-19 pandemic.

This subject will provide an interdisciplinary framework to discuss various aspects of the intersection between law, human behaviour and justice. The first part will be dedicated to developing a basic familiarity with the relevant principles of psychology and law and discuss the ways in which they interrelate. In the second part of the subject we will discuss different real life examples, involving judicial decision making, witness reliability, negotiations and more, in which the study of psychological concepts in the legal world plays out.

This subject will address a selection of the most significant and cutting edge issues in the law governing public administration. Importantly the subject will take a contextual approach, placing administrative law principles in the context of the administrative processes they are designed to regulate, and considering the role of law in the design and working of government administration. It will seek to consider cutting edge issues in administrative law not only through the lens of legal analysis but also from the perspective of public officials, who are the addressees of and must work with administrative law principles. The subject will focus on the law of Australia and other common law jurisdictions.

The subject is divided into three parts. Part one, on decision-making, will address the distinction and interrelationship between discretion and rules, including the use and legal status of government policy and official guidance; administrative procedures, including in terms of e-governance; and the place of good governance values in government rule-making, including values of transparency, accountability and participation. Part two, on judicial-executive relations, will consider government strike-back against judicial decisions, both in the context of judicial review and public authority liability, and the interplay between judicial review and government resource allocation. Part three, on ‘new principles, new challenges’, will critically examine and chart the implications for public administration of emergent doctrines such as proportionality, legitimate expectations and duties of consultation.

The subject will be of interest to lawyers with interests in public law, and of especial interest to lawyers working in or who advise government, and to anyone with an interest in how law frames and operates within public administration.

Principal topics include:

• Administrative decision-making
  • Administrative discretion and rules, with a case study on the use and legal status of administrative policy and guidance
  • Administrative decision-making procedures and the role of legal norms
  • Government rule-making and good governance values including transparency, accountability and participation
• Judicial-government relations
  • Government responses to judicial decisions and the impact of judicial decisions on public administration, with cases studies in judicial review and government liability
  • Judicial review and government resource allocation
• New principles, new challenges
  • Emergent doctrines and their implications for public administration, with case studies on proportionality, legitimate expectations and duties of consultation.

Mineral and petroleum resources have shaped Australia’s history, economy, society and environment for more than 150 years and continue to do so. The exploitation of these resources involves governments as proprietors and regulators, together with private enterprise as explorers and developers. The complex relationship between governments and private enterprise provides the central theme of the subject. Australia’s federal system of government adds to the complexity of that relationship. The subject begins by identifying fundamental legal issues that occur in most countries in the exploration for and production of mineral and petroleum resources. It then examines the ways in which these issues are resolved in Australia, using statutory title regimes and government agreements. The effectiveness of the Australian approach to these matters is examined in the international context of legal arrangements employed for management of mineral and petroleum resources elsewhere in the world.

Principal topics include:

• Terminology: the meaning of ‘mineral’ and ‘petroleum’
• Jurisdiction over mineral and petroleum resources
• Property in mineral and petroleum resources
• Statutory exploration and production titles
• Government royalties
• Petroleum production controls and unit development
• Dealings and registration
• Private royalties
• Access to land
• Environmental controls
• State agreements
• Unconventional gas
• Underground storage
• Greenhouse gas storage
• Uranium
• Case study 1: Mineral Resources (Sustainable Development) Act 1990 (Vic)
• Case study 2: Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth).

This highly interactive subject will give students practice-relevant skills for negotiation and dispute resolution. Negotiating effectively involves being able to change the conversation, shifting from adversarial to collaborative approaches. The best negotiators are also skilled at structuring processes and listening beneath what is said. This program will introduce a proven framework for creating value and resolving disputes, informed by recent research and extensive practice. Using experiential approaches, case studies and simulations, participants will deepen their abilities to represent clients and negotiate across a range of practice contexts. Participants will have multiple opportunities to refine their negotiation and dispute management skills, and will leave with a series of practical tools for dealing with difficult negotiation behaviours and hard bargaining tactics in diverse settings. This subject will be useful for those working on a wide range of complex issues in a range of contexts including commercial, environmental, public policy and human rights.

Drawing on current interdisciplinary literature and case examples from practice, students will:

• Learn a proven framework for dispute analysis and negotiation to address a range of disputes
• Understand the dynamics of intractable disputes and a range of tools to address them
• Heighten their awareness of personal strengths and weaknesses as a negotiator
• Gain problem-solving techniques to enhance possible solutions in complex negotiations
• Acquire skills for choosing the right process to craft durable outcomes
• Heighten their abilities to work across diverse contexts
• Practice and refine negotiation and dispute management skills toward more successful outcomes

Successful completion of the subject will expand participants’ abilities for complex issue analysis, intervention and follow-up as negotiators, representatives and facilitators in negotiation and dispute resolution processes. Students will learn valuable skills of integrative thinking and creativity through experiential exercises and their final papers.

Irrespective of their speciality, lawyers must negotiate. Litigators resolve far more disputes through negotiation than by trial. Business lawyers in every domain negotiate on behalf of their clients. Commercial litigators, public interest lawyers, in-house counsel, government lawyers, criminal lawyers, and tort lawyers all share the need to be effective negotiators. However few lawyers have any systematic understanding of why negotiations often fail or have suboptimal results, of the dilemmas inherent in negotiations, or of the characteristics of effective negotiators The same can be said for most non-lawyers who negotiate in business or other contexts.

By combining theory and practice, this subject should enhance students’ understanding of negotiation and their effectiveness as negotiators. The subject should improve their ability to prepare for a negotiation, to engage others in joint problem-solving, and to select appropriate strategies when negotiations don’t go well. Above all, this subject will equip students to continue refining their skills as they gain more experience.

Florrie Darwin has taught negotiation skills to students, as well as a broad range of professionals, around the world.

Principal topics include:

• Introduction to negotiation principles
• Basic framework for preparing, conducting and reviewing a negotiation
• Giving and receiving feedback
• Creating value in negotiations
• The challenge of distribution
• Effective listening
• Managing interpersonal differences
• Negotiating via email
• Effective responses to difficult negotiation tactics
• Dealing with structural complexity in negotiation/multi-party negotiations.

Project finance is the financing of major projects. It often takes the form of a financing arrangement under which the monies raised for a project are repaid primarily from the project’s cash flow, with the project’s assets held as collateral. It enables the sponsor of a project to arrange financing with no recourse, or limited recourse, to the sponsor’s balance sheet. Project finance is complex in view of the number of parties involved, the security that is taken over the project’s cash flow and assets, the nature of the rights that are exercised by the lenders in respect of the project generally and the cross-border character of stakeholders. Project finance lawyers need to have an in-depth understanding of both the legal issues that arise as well as the commercial and operational aspects of the project.

The lecturer is a leading practitioner in this area and will introduce students to the key legal, contractual and structural issues concerning major projects and project finance, and analyse these issues in the context of a number of case studies in the mineral, energy and infrastructure sectors.

Principal topics include:

• Characteristics of suitable projects
• Characteristics of project financing in Australia
• Project financing techniques
• Identification of risk and techniques for allocation of risk
• Structuring financing requirements for a project
• Contractual arrangements
• Project financing default and remedies
• Case studies of project financing in mineral, energy and infrastructure sectors.

Regulation has become a permanent feature of the way in which contemporary democratic economies, including Australia, are governed. There are few spheres of economic activity that are not subject to some form of regulatory oversight and control. Daily news programs rarely pass without some mention of a significant regulatory decision, proposed regulatory reform or allegations of some regulatory failure or scandal. For lawyers, dealings with regulators and regulatory regimes have become part of the staple diet of their work. Yet the practice of regulation is far from straightforward. Regulatory policy and practice has evolved considerably from its traditional origins in the form of ‘command and control’, accompanied by the growth of specific terminology and concepts that are likely to be unfamiliar to those other than regulatory technocrats. This subject provides an opportunity for students to develop an understanding of, and critically to evaluate, the basic tools, techniques and decision-making methodologies that are employed in regulatory design and practice. It will be of interest to both private and public sector lawyers who practise in regulated sectors of the economy, enhancing their understanding of how regulators go about the business of regulatory decision-making.

Principal topics include:

• Introduction: What is ‘regulation’ and ‘governance’?; the regulatory agency: institutional features, strengths and shortcomings; the rise of the ‘regulatory state’; regulatory regimes and the role of non-state actors
• Tools, techniques and instruments of regulation: command—traditional legal prohibitions backed by sanctions; competition—market based approaches; communication—information disclosure and publicity-based approaches; consensus (including self-regulation); code architecture and the use of ‘nudge’ techniques
• ‘New governance’ approaches to regulation: choice of Instrument; ‘hybrid’ approaches to regulation; responsive regulation, ‘smart regulation’ and its variants (including meta-regulation); algorithmic regulation, cost-benefit analysis and regulatory impact assessment and ‘better regulation’
• Enforcement and compliance: problems with rules; principles-based regulation; the role of the criminal and civil law; punitive civil sanctions (the Macrory Review); regulatory enforcement styles; national styles of regulation; private enforcement, third party monitoring and certification systems and the role of technological instruments for monitoring and control.
• Appraising Regulation: regulatory accountability; regulatory legitimacy: between democracy and expertise.

The exploitation of mineral and petroleum resources involves substantial risk. The resources joint venture provides a commercial opportunity to manage this risk. It is a particular legal relationship: an association of persons (natural or corporate) to engage in a common undertaking to generate a product to be shared among the participants. Management of the undertaking is divided: the participants determine some matters by agreement at the outset of the relationship; the power to determine other matters is vested in a committee on which the participants are represented and entitled to vote; a manager (or operator) is appointed by the participants to conduct agreed activities, on their behalf, within the scope of the common undertaking (exploration, development production).

This subject examines the legal issues involved in this complex relationship, together with ancillary transactions (such as farmouts). In doing so, it considers the capacity of the common law to respond to commercial imperatives. It also evaluates the effectiveness of legal documentation employed in establishing the joint venture relationship.

The lecturer, a former Dean of Melbourne Law School, has published extensively in the fields of energy and resources law and served as President of the Australian Mineral and Petroleum Law Association.

Principal topics include:

• Statutory titles, government agreements and production-sharing agreements
• Farmouts
• Joint ventures and operations
• Unit development
• The operator/manager
• Fundamentals of contract law and property law
• Assignment
• Liability
• Default
• Disclosure and confidentiality
• Sole risk
• Termination
• Codification.

In the first half of the 20th century most civil actions were for causes of action not much affected by statute: trespass, negligence, libel and slander, breach of contract and the various forms of equitable suit. Most criminal prosecutions were for offences created by statute but whose elements were treated as identified largely by judge-made law. There were great codifying acts; intellectual property acts, facultative acts, and regulatory statutes, but judge-made law was of central and dominating importance. The second half of the 20th century saw the statutory cause of action emerge to prominence, the enactment of laws permitting modification of privately-made agreements, the creation of new rights and obligations and novel forms of criminal offence. Statute became the central and dominating form of regulation of rights and obligations. The proper construction and application of statutes always has been, but now more than ever is, an essential legal skill. This subject seeks to develop and refine those skills.

Principal topics include:

• Construction—a text-based activity but involving more than a dictionary in one hand and the text in the other
• The importance of the constitutional framework and other basic assumptions
• The search for meaning and the metaphor of intention
• The place of Interpretation legislation, including rights Acts
• The canons of construction, their use and abuse ('canons to the right of them; canons to the left of them; on into the valley of death')
• Ambiguity and its resolution, including the use of extrinsic materials
• Inconsistencies, repeals, amendment, consolidation and retrospectivity
• The legislative misfire
• Special rules for special areas
• Rules and regulations—power to make, construction and use in construing the legislation
• Overarching theories and descriptions of the construction process.

Work Health and Safety Law has grown in scope over the past decade, particularly since 2010 when most Australian governments implemented nationally-uniform laws about work health and safety. Victoria has, however, continued, with a similar but different model, and has a particularly active regulator.This subject examines in detail the content of Victorian law, as well as the new national laws.

This subject By referring to the existing state, territory and Commonwealth body of law, this subject considers the operation of work health and safety law in its historical and industrial setting, as well as the likely practical operation of the regulatory regimes. The lecturer is a practitioner with over 20 years years’ experience in work health and safety.

Principal topics include:

• The problem of work-related injury and disease
• The history of the legal regulation of health and safety at work
• Nationally-uniform workplace health and safety laws
• Standard-setting under the Australian work health and safety statutes
• Worker representation and participation under the Australian work health and safety legislation
• State enforcement of the work health and safety legislation
• The application of work health and safety legislation to psychological health, bullying and sexual harassment
• How health and safety law has adapted to new ways of working and new challenges, such as remote and hybrid work, and COVID-19
• Workers’ compensation schemes in Australia and the rehabilitation of injured workers
• The role and impact of the common law duty to provide work that is safe and without risks to health.

This highly interactive subject will give students practice-relevant skills for negotiation and dispute resolution. Negotiating effectively involves being able to change the conversation, shifting from adversarial to collaborative approaches. The best negotiators are also skilled at structuring processes and listening beneath what is said. This program will introduce a proven framework for creating value and resolving disputes, informed by recent research and extensive practice. Using experiential approaches, case studies and simulations, participants will deepen their abilities to represent clients and negotiate across a range of practice contexts. Participants will have multiple opportunities to refine their negotiation and dispute management skills, and will leave with a series of practical tools for dealing with difficult negotiation behaviours and hard bargaining tactics in diverse settings. This subject will be useful for those working on a wide range of complex issues in a range of contexts including commercial, environmental, public policy and human rights.

Drawing on current interdisciplinary literature and case examples from practice, students will:

• Learn a proven framework for dispute analysis and negotiation to address a range of disputes
• Understand the dynamics of intractable disputes and a range of tools to address them
• Heighten their awareness of personal strengths and weaknesses as a negotiator
• Gain problem-solving techniques to enhance possible solutions in complex negotiations
• Acquire skills for choosing the right process to craft durable outcomes
• Heighten their abilities to work across diverse contexts
• Practice and refine negotiation and dispute management skills toward more successful outcomes

Successful completion of the subject will expand participants’ abilities for complex issue analysis, intervention and follow-up as negotiators, representatives and facilitators in negotiation and dispute resolution processes. Students will learn valuable skills of integrative thinking and creativity through experiential exercises and their final papers.

Irrespective of their speciality, lawyers must negotiate. Litigators resolve far more disputes through negotiation than by trial. Business lawyers in every domain negotiate on behalf of their clients. Commercial litigators, public interest lawyers, in-house counsel, government lawyers, criminal lawyers, and tort lawyers all share the need to be effective negotiators. However few lawyers have any systematic understanding of why negotiations often fail or have suboptimal results, of the dilemmas inherent in negotiations, or of the characteristics of effective negotiators The same can be said for most non-lawyers who negotiate in business or other contexts.

By combining theory and practice, this subject should enhance students’ understanding of negotiation and their effectiveness as negotiators. The subject should improve their ability to prepare for a negotiation, to engage others in joint problem-solving, and to select appropriate strategies when negotiations don’t go well. Above all, this subject will equip students to continue refining their skills as they gain more experience.

Florrie Darwin has taught negotiation skills to students, as well as a broad range of professionals, around the world.

Principal topics include:

• Introduction to negotiation principles
• Basic framework for preparing, conducting and reviewing a negotiation
• Giving and receiving feedback
• Creating value in negotiations
• The challenge of distribution
• Effective listening
• Managing interpersonal differences
• Negotiating via email
• Effective responses to difficult negotiation tactics
• Dealing with structural complexity in negotiation/multi-party negotiations.

This subject examines the law applicable to planning and development projects within Victoria. A detailed analysis of the Planning and Environment Act 1987 (Vic) and its application will be supplemented by an examination of the various political and economic aspects that are at play in the Victorian planning regime. The subject will also address the interaction of the Victorian planning regime with a number of other statutory processes relevant to the development of land within Victoria, such as those contained within the Environment Protection Act 1970 (Vic), the Subdivision Act 1988 (Vic), and the Building Act 1993 (Vic).

A key component of the subject will be a case study concerning a hypothetical development proposal.

Principal topics include:

• The conceptual framework for planning law in Victoria
• Evaluation of the various components of the Victorian planning regime, focusing on the operation of the Planning and Environment Act 1987 (Vic) and the Victoria Planning Provisions
• The role of key actors under the Victorian planning regime (such as the Victorian Minister for Planning and municipal councils) and the key processes established under the regime
• The review of decisions made under the regime (both in the Victorian Civil and Administrative Tribunal and the Supreme Court of Victoria) and the powers available to relevant planning authorities under the Planning and Environment Act 1987 (Vic)
• Particular problems that arise in the Victorian planning system such as the fair and equitable distribution of undesirable land uses, the limitation of urban sprawl within metropolitan Melbourne, the appropriate level of public participation in decision-making processes, and the need to deliver sound planning outcomes in a timely and efficient manner
• The interaction of the Planning and Environmental Act 1987 (Vic) and the Building Act 1993 (Vic).

Project finance is the financing of major projects. It often takes the form of a financing arrangement under which the monies raised for a project are repaid primarily from the project’s cash flow, with the project’s assets held as collateral. It enables the sponsor of a project to arrange financing with no recourse, or limited recourse, to the sponsor’s balance sheet. Project finance is complex in view of the number of parties involved, the security that is taken over the project’s cash flow and assets, the nature of the rights that are exercised by the lenders in respect of the project generally and the cross-border character of stakeholders. Project finance lawyers need to have an in-depth understanding of both the legal issues that arise as well as the commercial and operational aspects of the project.

The lecturer is a leading practitioner in this area and will introduce students to the key legal, contractual and structural issues concerning major projects and project finance, and analyse these issues in the context of a number of case studies in the mineral, energy and infrastructure sectors.

Principal topics include:

• Characteristics of suitable projects
• Characteristics of project financing in Australia
• Project financing techniques
• Identification of risk and techniques for allocation of risk
• Structuring financing requirements for a project
• Contractual arrangements
• Project financing default and remedies
• Case studies of project financing in mineral, energy and infrastructure sectors.

Regulation has become a permanent feature of the way in which contemporary democratic economies, including Australia, are governed. There are few spheres of economic activity that are not subject to some form of regulatory oversight and control. Daily news programs rarely pass without some mention of a significant regulatory decision, proposed regulatory reform or allegations of some regulatory failure or scandal. For lawyers, dealings with regulators and regulatory regimes have become part of the staple diet of their work. Yet the practice of regulation is far from straightforward. Regulatory policy and practice has evolved considerably from its traditional origins in the form of ‘command and control’, accompanied by the growth of specific terminology and concepts that are likely to be unfamiliar to those other than regulatory technocrats. This subject provides an opportunity for students to develop an understanding of, and critically to evaluate, the basic tools, techniques and decision-making methodologies that are employed in regulatory design and practice. It will be of interest to both private and public sector lawyers who practise in regulated sectors of the economy, enhancing their understanding of how regulators go about the business of regulatory decision-making.

Principal topics include:

• Introduction: What is ‘regulation’ and ‘governance’?; the regulatory agency: institutional features, strengths and shortcomings; the rise of the ‘regulatory state’; regulatory regimes and the role of non-state actors
• Tools, techniques and instruments of regulation: command—traditional legal prohibitions backed by sanctions; competition—market based approaches; communication—information disclosure and publicity-based approaches; consensus (including self-regulation); code architecture and the use of ‘nudge’ techniques
• ‘New governance’ approaches to regulation: choice of Instrument; ‘hybrid’ approaches to regulation; responsive regulation, ‘smart regulation’ and its variants (including meta-regulation); algorithmic regulation, cost-benefit analysis and regulatory impact assessment and ‘better regulation’
• Enforcement and compliance: problems with rules; principles-based regulation; the role of the criminal and civil law; punitive civil sanctions (the Macrory Review); regulatory enforcement styles; national styles of regulation; private enforcement, third party monitoring and certification systems and the role of technological instruments for monitoring and control.
• Appraising Regulation: regulatory accountability; regulatory legitimacy: between democracy and expertise.

The exploitation of mineral and petroleum resources involves substantial risk. The resources joint venture provides a commercial opportunity to manage this risk. It is a particular legal relationship: an association of persons (natural or corporate) to engage in a common undertaking to generate a product to be shared among the participants. Management of the undertaking is divided: the participants determine some matters by agreement at the outset of the relationship; the power to determine other matters is vested in a committee on which the participants are represented and entitled to vote; a manager (or operator) is appointed by the participants to conduct agreed activities, on their behalf, within the scope of the common undertaking (exploration, development production).

This subject examines the legal issues involved in this complex relationship, together with ancillary transactions (such as farmouts). In doing so, it considers the capacity of the common law to respond to commercial imperatives. It also evaluates the effectiveness of legal documentation employed in establishing the joint venture relationship.

The lecturer, a former Dean of Melbourne Law School, has published extensively in the fields of energy and resources law and served as President of the Australian Mineral and Petroleum Law Association.

Principal topics include:

• Statutory titles, government agreements and production-sharing agreements
• Farmouts
• Joint ventures and operations
• Unit development
• The operator/manager
• Fundamentals of contract law and property law
• Assignment
• Liability
• Default
• Disclosure and confidentiality
• Sole risk
• Termination
• Codification.

In the first half of the 20th century most civil actions were for causes of action not much affected by statute: trespass, negligence, libel and slander, breach of contract and the various forms of equitable suit. Most criminal prosecutions were for offences created by statute but whose elements were treated as identified largely by judge-made law. There were great codifying acts; intellectual property acts, facultative acts, and regulatory statutes, but judge-made law was of central and dominating importance. The second half of the 20th century saw the statutory cause of action emerge to prominence, the enactment of laws permitting modification of privately-made agreements, the creation of new rights and obligations and novel forms of criminal offence. Statute became the central and dominating form of regulation of rights and obligations. The proper construction and application of statutes always has been, but now more than ever is, an essential legal skill. This subject seeks to develop and refine those skills.

Principal topics include:

• Construction—a text-based activity but involving more than a dictionary in one hand and the text in the other
• The importance of the constitutional framework and other basic assumptions
• The search for meaning and the metaphor of intention
• The place of Interpretation legislation, including rights Acts
• The canons of construction, their use and abuse ('canons to the right of them; canons to the left of them; on into the valley of death')
• Ambiguity and its resolution, including the use of extrinsic materials
• Inconsistencies, repeals, amendment, consolidation and retrospectivity
• The legislative misfire
• Special rules for special areas
• Rules and regulations—power to make, construction and use in construing the legislation
• Overarching theories and descriptions of the construction process.

This subject will be delivered online in 2020 over the scheduled dates.

This subject provides an examination of current environmental tort, waste management and contaminated land laws from Victoria, across Australia and beyond, alongside an inquiry into global trends in the regulation of waste and its movement. The law and regulatory policies will be critiqued against the concepts of responsibility and justice, and contextualised through case study examples and practitioner perspectives.

The subject will ask: What are the risks and advantages of relying on particular types of laws to regulate waste, and protect the environment and humans from pollution and contamination? The subject will present Victoria, with its newly revised Environment Protection Act, as a case study for these laws, while also offering comparative insights, analysing developments in the law of torts and waste and contamination laws from Australia, overseas and internationally. It will also draw on recent controversies, including global ‘bans’ on the movement of waste, a rise in concern about plastics pollution, and the uncovering of legacy contaminants on federal lands, and highlight the experiences of practitioners to learn about the law in action.

Principal topics include:

• Toxic torts, human health and environmental justice
  • An introduction to the notion of a 'toxic tort’ and environmental health
  • The global origins of the toxic tort discourse
  • Toxic tort actions and notions of justice
• Environmental protection and responsibility; trespass, nuisance and negligence
  • Offences, duties, and regulatory models for environmental protection under pollution control legislation
  • Recent developments in the environmental torts landscape
  • Environmental torts and notions of tortious responsibility
• Waste management – from global to local
  • An international law framework for waste management
  • An overview of waste management laws – from the global to the local
  • The dilemma of plastics and the fate of recyclables. A case study-based critique of international, national, state and local laws and policy
• Contaminated land
  • An examination of Victoria’s contaminated land laws compared with Australian and overseas jurisdictions
  • Possible liability of a broader community of responsible parties—including financers and company directors
  • Practitioner perspectives on how clients manage contaminated land and pollution risk, and how lawyers can minimise potential future liability for contamination through due diligence and contract drafting.

Work Health and Safety Law has grown in scope over the past decade, particularly since 2010 when most Australian governments implemented nationally-uniform laws about work health and safety. Victoria has, however, continued, with a similar but different model, and has a particularly active regulator.This subject examines in detail the content of Victorian law, as well as the new national laws.

This subject By referring to the existing state, territory and Commonwealth body of law, this subject considers the operation of work health and safety law in its historical and industrial setting, as well as the likely practical operation of the regulatory regimes. The lecturer is a practitioner with over 20 years years’ experience in work health and safety.

Principal topics include:

• The problem of work-related injury and disease
• The history of the legal regulation of health and safety at work
• Nationally-uniform workplace health and safety laws
• Standard-setting under the Australian work health and safety statutes
• Worker representation and participation under the Australian work health and safety legislation
• State enforcement of the work health and safety legislation
• The application of work health and safety legislation to psychological health, bullying and sexual harassment
• How health and safety law has adapted to new ways of working and new challenges, such as remote and hybrid work, and COVID-19
• Workers’ compensation schemes in Australia and the rehabilitation of injured workers
• The role and impact of the common law duty to provide work that is safe and without risks to health.