This subject has two main dimensions. The first is a general introduction to the Chinese legal system focusing on its development, structure and institutions. This provides an essential underpinning to any foreign lawyer who seeks to engage with China in relation to a specific issue. The second dimension of the course is to focus more specifically on the major spheres in which foreign lawyers interact with the Chinese legal system in relation to commercial transactions, including both corporate and employment law.

The subject teachers aim to shed light on contemporary Chinese law, both on paper and in practice, by discussing examples and case studies that reveal the system in action, and its potential future trajectories.

Principal topics include:

• Historical context of the current law and practice
• Constitutional issues
• Institutions of the Chinese legal system (courts, legislatures, government agencies, central and local governments and lawyers)
• Law and economic reform
• Regulation of fundamental economic and civil relationships including property and contract
• The Chinese legal system and foreign investment environment
• Investment forms and company law
• The Chinese legal response to the social impact of economic reform; the example of employment regulation
• Dispute resolution.

The emergence of Asia as an economic powerhouse is driving enormous interest in doing business in the region. This subject provides students with an opportunity to examine commercial law in an Asian context. Although parallels can be drawn between Asian jurisdictions in terms of their economic and legal development, their commercial law systems are too diverse to be treated uniformly. Instead, the focus is on analysing key legal aspects of doing business in Asia – including contracts, business entities, international trade, competition law, dispute resolution and the role of lawyers – by reference to systems and case studies in various Asian jurisdictions. Singapore and Australia will be used as reference jurisdictions. The lecturer previously worked as a lawyer and academic in Australia, Hong Kong and Singapore and has written extensively on specific Asian business law topics.

Principal topics include:

• Introduction to economic, political and cultural context of Asian laws
• Commercial contracts
• Business entities
• Foreign investment
• Overview of World Trade Organization and international trade regulation
• Competition law
• Overview of finance and capital markets
• Courts and dispute resolution in Asia
• The role and regulation of lawyers.

This subject seeks to provide an overview of the theory and practice of constitutionalism in four countries in South and South East Asia: India, Indonesia, Singapore and Sri Lanka. Two of these are among the largest, most pluralistic nations in the world, while the remaining two are small island states. All four nations experienced long periods of colonial rule, which continues to have a decisive impact on their post-colonial legal and constitutional orders. The experience of colonialism contrasts quite starkly from those nations which were settler colonies, and this is an important focus of the course. In each of these nations, discussions about constitutionalism have become enmeshed within larger societal debates about economic development, cultural values, and human rights. The subject instructor has first-hand experience of research and teaching constitutional law in two of the four jurisdictions.

Principal topics include:

• Brief overview of the field of comparative constitutionalism, and methodological approaches to the discipline
• A broad introduction to the four jurisdictions, covering national histories, and their economic, social and political dimensions
• A focus on the colonial experience in the four jurisdictions and the nature of the colonial economy, and its politics
• The process of decolonization and the constitutional politics that was engendered as a result
• An examination of the post-colonial Constitutions adopted in these countries, with an emphasis on rights provisions
• Broad overview of post-colonial trajectories of the four jurisdictions, and their assessments by scholars
• The policies of economic development that were followed and the impact on constitutional politics
• Debates about culture, human rights and ‘Asian Values’.

The recent spectacular ‘rise of China’ as an economic and regional power has been accompanied by both major legal change and increased foreign investment. China now exerts significant global influence and is subject itself to the profound influences of globalisation. The ways in which the Chinese legal system functions are of critical importance to an increasing range of actors both within and outside China. The divergence between law and practice highlights the challenges faced in entrenching the rule of law as a core tool of governance. Taught by a world-recognised expert in Chinese law, this subject offers insights into Chinese law and its reform in the country that will have the most influence on the path of the ‘Asian century’. It focuses on contemporary issues in economic and civil law reform. It provides insights into how the economic regulatory framework is given effect in practice by examining the powers and functioning of Chinese legal institutions from the centre to the region; dispute resolution both formal and informal, criminal law and human rights issues as they impact on commercial relationships.

Principal topics will include:

• Law and economic reform
• Regulation of fundamental economic and civil relationships including property and contract
• Historical context of the current law and practice
• Constitutional issues
• Institutions of the Chinese legal system (courts, legislatures, government agencies, central and local governments and lawyers)
• Dispute resolution—formal and informal
• Criminal law and human rights issues
• Undertaking research in Chinese law.

This subject examines the legal issues and practical challenges that arise in relation to a cross-border transaction with China. Students will work through a type of foreign investment transaction (a joint venture), which will be used as a point of reference throughout the subject. In this way, students will develop an advanced and integrated understanding of the nature of a cross-border transaction with China (involving a foreign investor and assets in China) and also the legal issues that are relevant to each stage of the transaction. These issues will include the following:

• The legal and regulatory framework for foreign investment in China
• The different ways in which foreign investment is structured, including joint ventures and acquisitions
• The various stages of a foreign investment transaction in China
• Key legal issues arising in relation to documentation, including the impact of foreign investment law, contract law, property law, company law and private international law
• Mechanisms for resolving disputes, including arbitration clauses
• The regulation and role of lawyers in a deal with China and the theory behind the skills that they require, including advisory skills, drafting skills, cross-cultural communication skills and negotiation skills.

Principal topics will include:

• The Chinese legal system and foreign investment environment
• Preliminary agreements and deal stages
• Investment forms and company law
• Merger control
• Contract law
• Property law
• Dispute resolution
• Termination, insolvency and winding-up
• The role of lawyers
• Skills—drafting, negotiation and cross-cultural communication skills.

Throughout Asia the treatment of drug offences varies, although many countries retain the death penalty. Students will be asked to critically evaluate drug law, criminal procedure law and penalties in Asian jurisdictions selected from (but not limited to) China, India, Indonesia, Singapore and Vietnam.

The subject’s approach is explicitly socio-legal. Students will interrogate regional primary sources and then investigate how the laws operate in practice, drawing upon identified practice and current research. There will be a strong emphasis on case studies of important judicial decisions from the countries selected. This subject is also comparative, asking students to incorporate and defend a comparative approach to their analysis.

The first part of the subject will be an introduction to relevant international regimes and the national regulatory and institutional frameworks for drugs law in each of the countries selected. The second part of the subject will comprise a series of studies of significant and/or high-profile case studies from the countries selected, in which the practical application of the regimes examined in the first half are investigated. A comparative approach will be applied throughout.

Principal topics include:

• Key approaches to socio-legal comparative legal studies in the 21st century
• Diverse approaches within Asia to the regulation of drugs, through detailed and nuanced examination of the relevant criminal and procedure laws, taking into account different legal systems, social, political and cultural traditions, structures and practices
• The role played by different legal institutions in the regulation of drugs offences regionally, including courts, police, prosecutors, defence lawyers, NGOS etc.
• The contribution made to the regulation of drugs and drugs-related offences by international regulatory frameworks
• The impacts of non-legal networks and institutions on the development, implementation and review of drugs laws in the region
• Divergent attitudes to the death penalty
• Drugs-law-related reforms arising from the comparisons
• The possibilities for convergence or harmonisation of drugs law in Asia.

Investors involved in transactions in developing jurisdictions face a different set of risks from those working in developed countries. Lawyers, wherever located, need to know where to look for these risks, how to interpret them for clients, employers and counterparties and how to manage them. This knowledge is fundamental to advising investors how to avoid delays, cost overruns and transaction failure. This subject is explicitly transactional and designed to assist students who wish to be involved in deals in the region.

Materials and case studies will look at a number of countries in the region with examples taken principally from Thailand, Vietnam, Indonesia and Myanmar. However, skills learnt will be generally applicable to investing and advising in unfamiliar jurisdictions.

Thomas Miller has spent most of the past 20 years in private practice in Asia working on Asian transactions as a partner in the law firm Allens Linklaters.

Principal topics include:

• The characteristics of developing country legal systems that require a different transactional approach
• The identification of areas of investment where investment challenges are most likely to occur in developing countries
• The conduct of due diligence focusing on those areas where risk profiles differ significantly from those in a developed jurisdiction, such as land entitlements and disputes
• Structuring a foreign investment
• Funding a foreign investment
• Acquisitions of existing businesses
• Financing issues—and in particular foreign exchange controls, loan registration, the adequacy of securities and securities registers, the non-recognition of trusts and the relevance of political risk insurance
• Strategies for managing risk using documentation, negotiation and transaction structures.

In this subject, students will act as lawyers advising an international investor in a hypothetical investment project in a developing Asian jurisdiction (based on real life experience of the subject coordinator). Students must identify the legal risks and potential disputes in this developing environment and advise ways to mitigate such risks and avoid or resolve disputes. Students will study relevant laws, draft contractual documents, analyse legal issues, give advice, negotiate with the local government, project finance lenders and other parties and bring the deal to closure.  Students are also involved in a dispute scenario arising out of the transaction.  After the subject, students are expected to have an overview of the key risks and potential disputes in investment deals in developing Asian systems and ways to mitigate such risks through negotiation and documentation. Students can also research more deeply into particular legal issues such as expropriation, change in law, currency conversion or performance by state-owned companies and dispute resolution. Throughout the subject, students will study different areas of law such as investment, administrative, conflict of laws and international dispute resolution.

Principal topics include:

• General overview of risks and potential disputes for investors
• Risks of expropriation
• Risks of illegality
• Performance by state-owned enterprises
• Currency conversion
• Permits and regulatory approvals
• Choice of law, dispute resolution and the arbitration process
• Negotiating with local counterparties and international project finance lenders
• Resolving disputes and closing the deal.

Islam does not, in theory, recognise a distinction between religion and law because for Muslims both are derived from their god‘s revealed message. The result is the inevitable tension between Islamic beliefs and the modern (secular) nation state that lies at the heart of the politics of Islam in South-East Asia. It has become the subject of major global controversies and conflicts in recent decades, as religious and political leaders compete with, and – in most cases – accommodate, each other. This tension, and the legal, political and social controversies that result from it, are the focus of this subject, which is based on selected comparative case studies of efforts to achieve legal Islamisation from a range of countries in Australia’s region. Teaching is led by a scholar who has conducted extensive fieldwork across South-East Asia and worked closely with Islamic legal institutions in the region. He is supported by guest lecturers specialising on South-East Asia, who will bring their own perspectives to class discussions.

This subject examines the relationship between the modern nation state and Islam in Asia, focusing on the 240 million Muslims in Australia’s South-East Asian neighbourhood.

Principal topics include:

• How the original Arabic-derived legal thought has been adapted in new Asian homelands
• The essential position of Islamic legal traditions as an alternative authority to the contemporary nation state
• Current political and religious controversies arising in South-East Asia. These will be selected from a range that may include:
  • Islamic legal codes and laws for Muslims
  • The Qadi, Islamic judicial traditions and courts for Muslims
  • Islamic criminal punishment
  • Interest-free banking, ‘Islamic economics’ and commercial law
  • Islamic approaches to the status of women (fiqh Al-Nisa)
  • Zakat and other forms of philanthropy
  • Education and the role of madrasa and pesantren
  • The introduction of revivalist Islamic codes
  • Islamic radicalism and terrorist groups in South-East Asia, including Darul Islam, Jemaah Islamiyah and Al Qaeda.

Trade and Investment Laws govern regulation of free trade and liberalisation and protection of investment. They are two of the most important and fast-developing legal subjects in China. This subject focuses on the nature, context and evolution of trade and investment law-making and enforcement in China with emphasis on several specific legal issues such as trade in goods, trade in services, intellectual property, trade remedies, government procurement, foreign investment entry into China, investment protection, promotion and administration, national security review, and trade and investment dispute resolution, The latest developments such as the pilot free trade zones and the new proposal to amend foreign investment legislation will also be explored. This subject is taught from the perspectives of both Chinese legal reform and policy change and the evolution of international trade and investment systems. The lecturer is from a leading international law institute in China and was a practising lawyer in China.

Principal topics include:

• Nature, evolution and context of trade and investment law in China
• Tariff and non-tariff barriers measures
• Intellectual property
• Trade in services
• Anti-dumping, subsidies and countervailing
• Government procurement
• Foreign investment entry into China
• Establishment and operation of foreign investment companies
• Foreign investment protection and promotion
• Administration and national security review
• Trade and investment dispute resolution
• Pilot free trade zones in China
• New proposal to revise foreign investment law.

Payment systems around the globe have gone through tremendous changes and developments in the last decade. The technological and multimedia developments, recent financial crises, commercial changes and financial markets globalisation have all led to the emergence of new advanced payment devices coupled with a rapid rise in non-cash payment transactions. Fintech companies have been quick to follow this trend while striving to enhance digital payments. As payment transactions are a key component in any modern financial system, policy makers, courts and legal practitioners are now facing more challenges than ever before.

The subject deals with the law and practice of payment devices, focusing on the most recent changes and advanced innovations in the payment market. It is designed to provide students with unique knowledge of one of the building blocks of commercial and financial markets from a comparative and global perspective. In the course of studies we will analyse the main payment devices and innovative Fintech payments that are being used these days in Australia and other jurisdictions, while focusing on policy considerations, current legal frameworks, scholarly theories and business practices.

Principal topics include:

• Policy considerations in designing a payment system
• Characteristics of the Australian payment system
• Modern payment devices and their legal framework
  • The cheque as the paradigm payment device
  • Payment cards: credit cards, debit cards, stored-value cards and e-money
  • Electronic banking
  • Advanced payment networks (PayPal, Bpay, POLi, P2P networks)
  • Emerging trends - Mobile payments, digital currency (Bitcoin), contactless payments.
  • International payments.
• Consumers protection, in payment markets (unauthorised use of a payment device, stop payment order, error correction, distant payments, issuer insolvency, unused funds)
• Clearing and settlement (including real-time networks)
• The banking system and its effect on the payment market regulation
• Recent crises and the emergence of new payment systems
• The future of payments - an outline of the cashless society.

This subject examines the fundamental principles under Australian law relating to the provision of credit by financiers to businesses and consumers. The subject has as its focus the legal design of key 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' unsecured loans to loans supported by security interests and more complex title-based transactions. The subject also discusses recent Australian reforms in the field of banking and finance law, including the 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
• Recent legal reforms.

Following the global financial crisis (GFC) and the sovereign debt crisis, the debt capital markets have seen major changes. A lack of trust and disclosure led to a surge in bondholder litigation, along with ongoing enforcement action from supervisors and regulators. Investors continue to explore all available avenues to recoup losses. More recently, structured products have made a comeback as investors hunt for yield or, alternatively, seek sustainable investments in the bond markets. The focus of this subject is distinctly practical. Real-life examples from international practice will be analysed and discussed. The lecturer draws on his international experience and brings in guest lecturers from top tier law firms and financial institutions, as well as other disciplines, contributing to a highly interactive, challenging, flexible and overall rewarding subject.

This subject covers the law and practice of the international debt capital markets. It discusses the mechanics of the capital markets generally, explaining how these differ from the loan and derivatives markets. It covers the relevant actors and the (highly dynamic) legal and regulatory framework. There is emphasis in class on the legal and structuring aspects of actual capital market transactions, such as covered bonds, securitisations, (structured) bonds and hybrid transactions.

Restructuring of bond transactions (as evident in the recent sovereign debt crises) is a prominent feature. Consideration of financial markets litigation (involving investment banks, hedge funds, ratings agencies, derivative dealers and regulators) is another important aspect of the subject. Green and inclusive finance (through green bonds, some project bonds and microfinance securitisation) also features. Actual transactions, their structure, term sheet and documentation, are discussed in class, in order to provide students with a skillset that is applicable in legal practice and thus further enhance their legal prospects and careers.

This subject considers the law and practice of the international derivatives markets. It has a distinctly practical focus. A key objective is to provide students with skills they can apply in legal practice. The lecturer will draw on his extensive experience as well as bring in guest lecturers from a variety of backgrounds to add to an interactive and challenging subject. It will also include a negotiation session.

Principal topics of the subject will include:

• Derivatives markets generally (exchange-traded, over-the-counter and embedded derivatives) and their commercial drivers and legal risks, on central clearing in practice
• Derivative products (ranging from plain interest rate derivatives to credit derivatives and niche products such as weather and emission trading derivatives)
• The structure, mechanics, key features and pitfalls of ISDA derivatives documentation
• Regulation of international derivatives markets and their key risks (including a comparison of United States derivatives regulation under Frank-Dodd and the European Union implementation under the EMIR regulation)
• The interrelationship between derivatives and other financial products (the use and documentation of swaps in structured finance, for instance securitisation and covered bonds)
• Analysis of the role of derivatives, especially credit derivatives, in the Greek crisis as well as the Eurocrisis
• The risk of mis-selling derivative products and potential liabilities (examples from Australian, Asian and other overseas transactions)
• Explanation of the role derivatives can play in international development finance.

This subject is concerned with the regulation of financial intermediaries, including financial product issuers, broker/dealers, fund managers, custodians, financial planners and investment advisers. Orthodox approaches to the regulation of financial intermediaries have been under significant challenge since the Global Financial Crisis, with more to come. The subject combines a thorough technical grounding in the current law governing the provision of financial services to retail and wholesale clients in Australia with broader perspective on likely future directions in financial services regulation. The lecturer is a former Australian Securities and Investments Commission (ASIC) Regional Commissioner and one of Australia’s leading experts in the areas of funds management law and financial services regulation

This subject examines the regulation of financial services providers and the legal dimensions of their relationship with their clients. In particular, it deals directly with relevant parts of Chapter 7 of the Corporations Act 2001 (Cth) and the general law relating to brokers, dealers and financial advisers. It also covers the related topic of financial product disclosure.

Principal topics include:

• Policy underpinning Chapter 7 of the Corporations Act 2001 (Cth)
• Theoretical and comparative approaches to regulating financial intermediaries
• The Australian Financial Services (AFS) licensing regime
• Financial services disclosure
• Statutory and general law duties of financial services providers
• Financial product disclosure
• Roles and powers of the Australian Securities and Investments Commission (ASIC) and the Australian Prudential Regulation Authority (APRA)
• The impact of new technologies in financial services: regulating for disruption.

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Hedge funds and private equity funds involve the allocation and investment of trillions of dollars, ultimately in a wide range of financial instruments and numerous operating companies across a variety of industry sectors. In recent years, managers of these ‘alternative investment funds’ have become subject to heightened scrutiny from regulators and the media. This subject provides an opportunity to learn in detail about the structuring and operation of hedge funds and private equity funds, providing students with an advanced and specialised knowledge in the relevant areas of law, and will examine recent developments in these areas.

Principal topics include:

• Introduction to hedge funds and private equity funds
• Dramatis personae
• Overview of regulatory issues relating to structuring
• Overview of regulatory issues relating to marketing
• Investors and due diligence issues
• Investment objectives and restrictions
• Legal documentation for a hedge fund
• Current issues related to hedge fund managers and investors
• Legal documentation for a private equity fund
• Current issues related to private equity fund managers and investors.

In the wake of the Global Financial Crisis (GFC) of 2008, the visibility of finance and financial regulation has increased dramatically. This subject will provide an overview of the global financial system and international efforts to build structures to support its proper functioning. Taking an integrative approach, the subject will look at the evolution of the global financial system, its structure and regulation. In doing so, it will analyse financial crises, especially the GFC, and responses to it, the Basel Committee on Banking Supervision (BCBS), the Financial Stability Board (FSB) and the International Monetary Fund (IMF).

Principal topics include:

• The historical evolution of the international financial markets from Bretton Woods to the present
• Costs and benefits of internationalisation and globalisation of finance
• International debt and derivatives markets
• International prudential regulation and capital adequacy
• The rise of emerging markets and their integration into the global financial system
• Major international financial crises, their causes and implications
• Regulatory responses to financial crises and mechanisms for crisis resolution
• The international financial architecture and its evolution
• The impact of technology on global finance and its regulation: FinTech and RegTech.

The purpose of this subject is to give students an advanced and integrated understanding of the legal issues that arise in international financial transactions. This is achieved by looking at the principal transactions, analysing the ways in which they are structured and implemented, and identifying relevant legal issues. This subject provides students with an insight into cross-border transactions and the role of international finance lawyers. It is therefore of particular interest to lawyers practising or seeking to practise law in this area and also to lawyers and bankers in commercial and investment banks.

Principal topics include:

• The regulation of international finance
• Financing options: bank financing versus capital markets financing
• Debt capital markets
• Syndicated lending
• Techniques of loan sales: novation, assignment and participation
• Legal issues, including insolvency, security, the use of trusts, contractual rights and governing law
• Islamic finance
• Transactions: derivatives, asset securitisation and project finance.

This subject involves the study and analysis of the structure, purpose and key provisions of cross border lending documentation, including large market standard syndicated credit agreements (governed by New York or English law). Students will focus on anticipating potential concerns and tensions in the negotiation process and will have the chance to review and study all the agreements and documents such as the credit agreement, other ancillary documents, schedules and deliveries that they will encounter in practice. Students will also study the structure and standard documents used in the cross-border repo market, one of the most important international capital markets.

Christian Johnson is the Dean and Professor of Law at Widener Commonwealth Law School in the United States. Dean Johnson has worked for large international law firms in New York and Chicago. In addition to teaching previously at Melbourne, he has taught lending and finance documentation to lawyers and bankers in Europe, the Middle East, Asia and Latin America. Professor Johnson has his JD from Columbia Law School and is a CPA.

Principal topics include:

• Study of the key interbank credit markets
• Analysis of the various structures and purposes of different cross-border lending transactions
• Discuss the key differences between New York and English law in lending transactions
• Review of the key provisions and clauses found in cross-border lending documentation
• Study of the key clauses found in New York/English guarantees
• Analysis of the key legal, credit and business issues in repo transactions.

Is sustainable finance the answer to climate change, poverty and inequality?  The purpose of this subject is to immerse students in sustainable finance in international practice, from micro-finance to green bonds, renewable energy and refugee financing. Across these markets, key legal concepts, structural features and documentation are covered in detail.  By engaging in-depth, through term sheet negotiations, the students jointly develop the skills to assess, prioritise, challenge and negotiate these transactions.

The subject coordinator draws on his own experience in global sustainable finance, and invites experts from international law firms and consultant, to help you become ‘more than a lawyer’.

This innovative subject will combine classroom teaching with online learning.  Students will be expected to attend four days in class and participate in online learning prior to the subject being taught.

Principal topics include:

• The Sustainable Development Goals, their evolving regulatory framework, their implementation by banks, funds and corporates in international practice
• Development Finance, the actors and the law, covering such diverse issues as sanctions law, immunities and aspects of state aid, as well as environmental and social law in financial transactions
• Understanding the structural features of international financial transactions with a focus on sustainability
• Inclusive finance, through microfinance, gender finance and small and medium enterprise (SME) lending, and relevant regulation
• Green bonds, SDGs bonds and social impact bonds, furthering sustainability the capital markets
• Local currency financing as a means for derivatives to provide sustainable development
• Legal aspects of renewable energy project finance
• Impact investing (private equity and funds)
• Examples of structured sustainable finance, for instance through refugee finance, vaccine bonds, drought risk transfer and microfinance securitisation 
• Examples of litigation in sustainable finance, for instance the risk of mis-selling ‘green’ products, and legal means to address this risk in documentation as well as through strategic means.

Insurance is a cornerstone of effective risk transfer. It is often critical to the viability of commercial enterprises and transactions. However, insurance contracts and arrangements have become increasingly complex, and specialised knowledge is required to understand their operation and limitations. This subject will provide an in-depth understanding of liability insurance, which indemnifies insureds against liability to third parties, and comprises a large part of the insurance market. It will examine the roles and obligations of participants in the insurance industry, different types of liability insurance, key principles of the common law regarding insurance, and legislative intervention, especially the Insurance Contracts Act 1984 (Cth), including recent amendments to the Act. The lecturers are barristers specialising in insurance law, who for many years have represented and advised both Australian and overseas insurers.

Principal topics include:

• The structure and operation of contracts of liability insurance, and the main forms of liability insurance, including professional indemnity insurance public and products liability insurance, and directors’ and officers’ insurance
• The operation of the insurance industry and the roles of various insurance industry participants, such as underwriters (including Lloyd's syndicates), excess insurers, co-insurers, reinsurers, captives, underwriting agents, claims officers, lawyers, insurance brokers and loss adjusters
• An overview of the legislative and regulatory framework for the Australian insurance industry
• The construction of insuring clauses and extensions
• The construction of exclusion clauses and conditions, including cross-liability, severability and non-imputation clauses
• The operation and effect of the Insurance Contracts Act 1984 (Cth) and its interplay with the laws of contract, equity and tort, and with the Australian Consumer Law,on matters including:
  • The duty of utmost good faith
  • Misrepresentation and non-disclosure
  • Notification of claims and circumstances
  • Section 54 of the Insurance Contracts Act 1984 (Cth) and remedies for breach of insurance contracts
  • Cancellation of insurance contracts
  • Rights of third party beneficiaries
  • Subrogation
• Double insurance
• An analysis of issues requiring further legislative reform.

Managed investment schemes – including managed funds, listed and unlisted property trusts, infrastructure funds, mortgage funds and agribusiness schemes – occupy a significant place in the Australian economy. These collective investment vehicles raise particular structuring, governance and regulatory issues, many of which became apparent during the Global Financial Crisis (GFC). This subject will provide participants with a detailed understanding of the legal and regulatory framework within which managed investment schemes operate and the policy imperatives that underpin it. The lecturer is Australia’s leading expert on managed investments, and a former Regional Commissioner of the Australian Securities and Investments Commission.

Principal topics include:

• Regulatory principles
• The definition of MIS and the scope of regulation
• The registration requirement
• The constitution and compliance plan: Contents and effect
• The responsible entity: Qualifications, duties and liability
• Directors of the responsible entity: Duties and liability
• Scheme governance
• Offer, issue and redemption of interests
• Members’ remedies
• ASIC powers
• Issues in MIS insolvency.

This subject involves a detailed study of the Personal Property Securities Act 2009 (Cth) (PPSA). The PPSA is one of the most significant commercial law reforms to have been enacted in Australia. Based partly on the Canadian provincial PPSAs and Article 9 of the United States Uniform Commercial Code, the PPSA deals with the taking of security interests in personal property (goods, accounts receivable, intellectual property and the like) and it governs every aspect of the transaction including the formalities surrounding entry into a security agreement, registration of security interests, priorities between competing security interests in the same collateral and enforcement of security interests. The PPSA replaces the registration of charges provisions in the Corporations Act 2001 (Cth), the state and territory bills of sale statutes and the state and territory statutes governing registration of security interests in motor vehicles. It also substantially reforms the law relating to floating charges and the law relating to reservation of title agreements. The PPSA was subject to a major review which was completed in early 2015 and the government is currently considering amendments to implement the review’s recommendations. The subject will include a systematic study of the review’s main recommendations. It will also include study of the Australian PPSA cases decided to date, along with leading Canadian and New Zealand PPSA cases, to the extent that they are relevant in the Australian context.

Principal topics include:

• Aims and objectives of the PPSA
• Scope of the PPSA
• Validity, enforceability and attachment of security interests
• Perfection of security interests and the consequences of non-perfection
• Registration of security interests
• Competing claims to collateral: the basic PPSA priority rules, purchase-money security interests and buyers in the ordinary course of business
• The secured party’s claim to collateral proceeds
• Secured creditors’ remedies.

In recent decades, the rate of technological innovation in financial services has accelerated, posing new challenges for regulators and regulated financial services firms around the world. This course will provide a brief introduction to the existing technologies and business models used by established financial services firms and the regulatory framework that applies to them, before examining how new technologies and new business models are transforming financial services around the world. Different law reform strategies adopted by regulators in different countries will be assessed, as will business strategies of regulated firms to accelerate their rate of innovation. As national regulators confront the challenge of protecting local consumers in global markets, they may respond by collaborating with other national regulators, with extraterritorial enforcement of their laws, collaboration with private regulators, or ceding the terrain to private regulators. Although cryptocurrencies, blockchain and distributed ledger technologies may receive the most media coverage, many other case studies of disruptive 'FinTech' innovation and its regulation in both advanced and emerging economies will be examined.

Principal topics include:

• Commercial banks and bank regulators
• Global harmonization of bank regulation
• Payment systems and payment law
• Legacy technologies and internal controls
• Economics of networks and platforms
• Economic drivers of innovation
• Better regulation and new governance
• The rise of smart machines
• Evidence-based problem solving
• 'RegTech' is the new FinTech
• Faster payments/immediate payments
• Bitcoin, blockchain, distributed ledger
• FinTech regulation in the United States; United Kingdom and European Union; China; and India.

Few areas of law offer the variety and dynamic reform agenda that is encountered with superannuation law. Superannuation law draws together traditional corporate, equitable and trust principles with modern legislative initiatives to achieve Australia‘s retirement incomes objectives. The superannuation industry is heavily influenced by public policy, is governed by multiple regulators and a variety of legislation. The industry is characterised by an array of different stakeholders, ranging from peak industry bodies to the Commonwealth Government. A practice in superannuation law therefore requires a truly holistic approach and a willingness to tackle relevant aspects of other laws, including employment law, family law, contracts, insurance and financial services laws generally. This subject examines the development of superannuation in Australia, the interaction between statutory and general law principles, the role played by various entities in the industry, the licensing, conduct and disclosure obligations and recent reforms, such as those proposed by the Financial System Inquiry.

Principal topics include:

• Development and history of superannuation in Australia
• Characteristics of the superannuation industry (eg the types of funds that exist)
• The regulatory environment for superannuation and the role of key regulators: the Australian Securities and Investments Commission (ASIC), Australian Prudential Regulation Authority (APRA) and the Australian Taxation Office (ATO)
• Interaction of general law and statute in relation to trustee duties, rights and powers
• The trust instrument and key service provider contracts (eg investment management, group insurance, administration and custody agreements)
• Trustee decisions, complaints handling and the role of the Superannuation Complaints Tribunal (SCT)
• Self-managed superannuation funds and their regulation
• Taxation of superannuation
• Licensing, conduct and disclosure obligations in the superannuation industry
• The superannuation guarantee and other employer obligations
• Recent reforms and reform proposals.

This subject relates to the cultural, economic and legal implications of the concept of 'appropriation' in art.In this subject, there will be a study of a variety of cases, articles, and book excerpts from all over the world that discuss the concept of appropriation from a cultural and from a legal point of view as well as their implications for the future. Special attention will be paid to a variety of topics, including post modern and protest art movements, intellectual property, the role of technology and indigenous concerns.

Principal topics include:

• Postmodern art and theory
• Intellectual property
• Cultural property
• Trademark law
• Indigenous studies
• Advertising
• Freedom of expression.

Historically a computer was “programmed” by a human utilising a precise set of instructions. Within this paradigm the computer was able to “process” information “fed” to it and produce a particular output based on such programming and information.

The human input was clear and transparent. As artificial intelligence (AI) has evolved in concert with the internet, cloud computing, big data gathering, data storage and data processing capabilities and the ubiquitous uptake of interactive smartphones and other “smart” devices, the relationship between the computer and direct and immediate human stewardship or control of outputs has become less readily identifiable. In turn this has given rise to significant legal issues.

There are substantial legal implications of AI which require ongoing, flexible and informed responses from lawyers and legal policy makers. This subject seeks to inform practicing lawyers, legal policy makers and non-lawyers in respect of those issues and how they might be dealt with.

Principal topics include:

• Introduction to AI. What is AI?  Where is AI headed?
• The legal issues raised by AI.
• Overview of current AI legal reviews underway in the USA, EU and UK and Australia’s response to these reviews
• Intellectual property issues raised by AI
• Criminal liability in respect of AI
• Civil legal liability – examination of who is (or should be) responsible/liable for AI caused loss and harm.
• Mandatory insurance schemes for loss or damage caused by autonomous robots or AI 
• The legal regimes governing use of AI in security, law enforcement and military contexts
• Privacy and confidentiality implications of AI

There is no international consensus as to an appropriate balance by defamation laws between freedom of expression and the protection of reputation. The increasingly cross-border nature of communications has heightened the potential for conflict between different jurisdictions’ laws. This subject examines Australia’s defamation law and practice alongside a close analysis of other important common law jurisdictions, particularly the United Kingdom and North America, to enable students to analyse, apply and critically evaluate defamation laws in contemporary contexts.

The subject brings together two leading media law experts. Professor Andrew Kenyon is a Director of the Centre for Media and Communications Law and researches in all aspects of media law. Dr Matt Collins QC is an Australian barrister and author of a leading international text on defamation law.

Principal topics include:

• Elements of the cause of action: publication, identification, defamatory meaning
• Truth-related defences
• Fair comment and honest opinion
• Privilege and fair report defences
• Other defences
• Jurisdiction and choice of law
• Remedies and practice
• Related causes of action
• English and American defamation law: comparative focus.

This subject examines some legal aspects of a modern entertainment industry – in particular, contractual arrangements and intellectual property rights, as well as publicity and privacy rights. Particular reference will be made to the United States, home of the largest entertainment industry in the world, and Australia, which of course has its own important entertainment industry, but other countries will also be considered. The focus will be both on the written law (with an emphasis on legal development and policy) and the law as it is practised, with the latter part of the course devoted to a contract negotiation exercise. Cases and examples will mostly come from the fields of music, book publishing, the visual and performing arts and live theatre.

Principal topics include:

• The entertainment industry and measures of social value; stakeholders within and outside the industry; need for law; range of relevant laws
• Intellectual property and misappropriation: copyright and neighbouring rights, moral rights, trade mark rights, publicity rights, passing off, trade secret protection and unfair competition
• Contracting in the entertainment industry: licensing, joint ventures, examples of contracts in use (such as book publishing, music touring, character merchandising), and processes and strategies adopted in negotiation
• Expansion of rights: technological developments, sui generis or incremental responses, United States and Anglo-Australian approaches
• Privacy and related issues: implications for industry practice and entertainers
• Practical exercises on negotiation and drafting book and merchandising contracts (explored in a workshop environment).

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 with 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
• 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
• Hardware supply arrangements
• Network management, security and maintenance
• Cloud services: risks and liability
• Database and content management issues including privacy
• Risk allocation and management of information technology contracts (including insurance and escrow arrangements).

The internet turns 27 in 2018, and remains the fastest-growing medium of communications. It is also a uniquely democratic means of communication, blurring the traditional boundaries between publisher and reader. It has created unparalleled opportunities for sharing, fully duplex peer communications and novel types of social media. Nevertheless, the legal rules governing it remain unsettled and are arguably too old-fashioned for the modern environment. These developing legal rules and norms are the focus of this subject. These issues are explored in the context of liability for infringement of copyright and breaches of privacy, defamation and obscenity in respect of the publication of material online.

Principal topics include:

• Overview of technology and avenues of distribution
• Copyright and allied rights in online services
• Regulation of transnational online products and services
• Defamation
• Privacy
• Obscenity and other criminal liability for publication
• Conflict of law
• Intermediary liability
• Theoretical issues such as the nature of democratic governance in a borderless world, regulatory arbitrage and the appropriate basis for liability where internet businesses encourage others to offend.

Whilst the High Court has recognised and applied an implied constitutional guarantee of freedom of governmental and political communication, speech on matters of public interest in Australia remains subject to a wide range of legal limitations, many of which would be struck down as unconstitutional in other common law jurisdictions. This subject explores the limitations on free speech that arise as a result of proceedings and processes initiated by arms of the state and prosecutorial authorities: legislative, executive and judicial, and from censorship of sexually-explicit material to restrictions applying to the advocacy of terrorism. Those restrictions profoundly affect the material that may be published by the media. It is the impact of the current restrictions on free speech on both the media and on non-media elements of civil society that are the focus of this subject. Taken individually and collectively, these regimes limit the access of Australians to speech that matters.

This subject provides an examination of Australian law affecting the media’s ability to report the courts, the executive and parliament.

Principal topics include:

• Contempt of court
• Contempt of parliament
• Offensive publications: violence, pornography and racism
• Seditious publications
• Access to information in court
• Government information: security and official secrets
• Freedom of speech: theoretical issues and international perspectives.

The internet has given rise to new modes of communication. Services such as Netflix, Facebook and Google pose significant challenges for traditional models of communications regulation. At present, traditional media are arguably among the most heavily regulated sectors of the Australian economy, yet new media services go largely unregulated. This subject examines the conflict between traditional regulation of old and new media. Australia’s current regulatory arrangements arose in the 1990s and reflect the structure of the electronic communications industries at that time – focusing on the separate and highly prescriptive regulation of broadcasting and telecommunications. The current regulatory framework is fragmented and complex, and covers not only technical issues but also sector-specific competition, content and ownership rules. Since the 1990s, however, the communications environment in Australia has undergone a period of rapid and profound change. The emergence and ubiquitous adoption of the internet as a mass communications system has provided new opportunities for Australian publishers and audiences by dismantling traditional technological, economic and regulatory barriers to entry. From national security to sport, this revolution in communications has profound policy issues for national regulation in a global communications environment.

Principal topics include:

• What is communications law? (including different regulatory approaches)
• Regulation of communications services, including radio and television services
• Australian content rules
• Control and ownership of broadcasting and communications enterprises
• Digital broadcasting law and regulation
• Pay TV and the anti-siphoning regime
• Competition in telecommunications (including regulation of anti-competitive practices, NBNCo and the structural separation of Telstra)
• Interconnection law and policy
• Spectrum allocation (including licensing and spectrum auctions)
• Consumer protection issues
• Regulation of internet content and filtering
• Multi-channelling of free-to-air TV services
• Regulation of new services and technologies, including convergence of media and Australian content requirements.

Whether journalists serve collectively as some citizen-informing ‘fourth estate’ or act instead merely to satisfy the consumer desire for entertainment, they need access to information. Journalists rely upon being able to disclose or convey content that is unavailable to, or at least unexploited by, others. Some will obtain this information by fair means, others by foul. The core aim of this course is to consider how law and other forms of regulation influence pre-publication behaviour.

The course reviews a range of news and information gathering practices, and assesses the extent to which such behaviour is facilitated or proscribed by law and/or regulation. The themes in the course will be taught through the comparative review of English, Australian and United States law. Dr Andrew Scott is a senior lecturer in media law at the London School of Economics.

Principal topics will include:

• The relationship between newsgathering practices and constitutional guarantees of free speech
• The protection of sources and materials (in principle; in the context of crime, terrorism and official secrets; payment of sources).
• Access to government information (freedom of information; news management)
• Journalism and justice (access to the courts and court documents; cameras and other technology in court; access to prisoners; policemedia interaction)
• Surreptitious and invasive methods (harassment; subterfuge and secret recording; entrapment; regulating the ‘dark arts’ – hacking, blagging and tapping; a ‘law-breaking privilege’?)
• The influence of publication torts on newsgathering.

The world‘s first feature-length film was thought to have been produced in Australia in 1906. The Story of the Kelly Gang told the story of Australia‘s most infamous bushrangers and received distribution in Britain and New Zealand as well as in Australia. From 1906 onwards, Australian films and television programs such as Picnic at Hanging Rock, The Castle, Shine and The Sullivans have helped to define the particular cultural identity of Australians. This subject explores the issues associated with the production, financing and distribution of such films and television programs, with particular reference to feature films and sport and drama television programming. The lecturer in the subject has been an in-house counsel at an Australian television network and this experience adds to the practical relevance of the subject.

Principal topics include:

• Introduction to the changing landscape of the film and television industries in Australia and internationally
• Copyright clearance issues
• Moral rights
• Breach of confidence and privacy
• Sport on television
• Film financing, production and distribution
• Australian content regulation and the production of drama programming
• Production and broadcast of advertising on television
• Music: Use in film and television programming
• Distribution and merchandising of film and television programming
• Employment and contractual arrangements for film and television personalities
• Copyright and other rights in television formats.

This subject examines the relationship between surveillance and privacy, with a particular focus on the challenge of regulating new surveillance technologies and protecting informational privacy. Beginning with a brief overview of the history of identification and mass surveillance (such as census-taking, record-keeping, as well as passports and identify cards), the subject focuses on how the law in countries such as the Australia, the UK and the US has been used to protect privacy rights and restrict the use of overly intrusive surveillance techniques by the state and private sector.

Principal topics include:

• An overview of the history of surveillance, with a particular focus on the relationship between state surveillance and governance
• A detailed examination of different conceptions and justifications of individual privacy (including a critical analysis of the idea that there should be a free-standing right to privacy)
• A critical examination of how various forms of state and private sector surveillance are regulated in Australia, the UK, and the US
• A close examination of the regulatory challenge posed by emerging surveillance technologies, including various forms of biometric surveillance, data mining, and communications interception
• Discussion and debate about the legal and philosophical limits of privacy, focusing on such questions as whether there should be a right to privacy in public spaces or a general right to online anonymity
• A critical examination of the prospects for law reform in the areas of surveillance and privacy in Australia, the UK, and the US.

Privacy has been valued for centuries but now there is a resurgent interest in its protection as a result of new technologies, changing social norms  and a rise of markets focused on the commodity value of information. Overlapping with the resurgent interest in privacy is a related concern about the management of data flows, especially on the part of government agencies and business organisations. The legal frameworks that deal with privacy and data protection have a long history but are coming under pressure to adapt to a more complex modern environment.

Privacy and data protection experts Professor Megan Richardson and Karin Clark explore these issues. They pay particular attention to the scope and nature of privacy protection as well as appropriate limits and exceptions, the ongoing pressures for law reform, and the practical operation of privacy and data protection laws in Australia and comparable jurisdictions.

Principal topics include:

• What is privacy?
• Conceptual and legal definitional issues
• International and comparative privacy and data protection regimes
• Protection of privacy in general law in Australia and comparable jurisdictions
• The Privacy Act 1988 (Cth): regulation of personal information held by the private and public sectors
• State/territory (especially Victorian) legislative regimes for the regulation of personal information
• Current topics in privacy law such as privacy and the media, privacy and health information, online privacy (including anti-spam laws), telecommunications and surveillance privacy
• Current reform inquiries and proposals and likely reforms.

This subject will provide valuable in-depth insights into the political economy surrounding competition policy, law and enforcement in the Asia-Pacific region. Concentrating on the experience of key Asian jurisdictions including Japan, China, Philippines, Singapore and India, students will learn about the major features of the law and institutions in this region, the extent to which the regimes in the region conform to prevailing global competition norms, and the challenges facing practitioners and enforcement agencies in the Asia-Pacific. Relevant examples will also be drawn from other Asian jurisdictions such as Indonesia, Hong Kong and Malaysia.

Highlights of the subject include:

• Critical examination of the approaches taken to the design of competition agencies and application of competition laws in the Asia-Pacific region
• Exploration of the political economy of competition law, using experiences in the Asia-Pacific region as case studies
• Insights and perspectives from leading stakeholders such as competition authority officials and practitioners to assist students in developing a sophisticated appreciation of the issues facing the development and practice of competition law in the Asia Pacific region.

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 Australian Consumer Law and of the common law principles and policy imperatives that underpin it. 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
  • Consumer guarantees and implied terms
  • Unfair contract terms.

Big Data is a big deal in today’s digital data-driven economy. Together with Big Analytics, it is increasingly central to strategic decision-making as companies strive for a 'data advantage' over rivals. Data-driven mergers are on the rise and there are growing risks of algorithmic coordination with anti-competitive effects. Data-based business strategies have significant implications for competition policy and law. Competition authorities around the world are grappling with big questions regarding data in defining markets and assessing market power.  Close attention is being paid to questions concerning the collection and use of data in the settings of merger review and abuse of dominance and cartel investigations. At the same time, the intersection between competition, consumer protection and privacy is raising important institutional questions for the allocation and coordination of policy, regulatory and legal responses. 

This subject will explore global developments in this complex and fast-moving field. Drawing on the latest literature and major cases and inquiries, it will equip students to critically engage with and meet the challenges posed for business and its advisors and for policymakers, regulators and law enforcers in the Big Data era. 

Principal topics will include:

• Defining Big Data
• Debating the competitive significance of Big Data
• Competition law tools in the era of Big Data
• Big Data and merger review
• Big Data and abuse of dominance
• Big Data and collusion
• Regulating Big Data 

Cartel conduct is regarded as anathema to competitive markets and consumer welfare. Such conduct encompasses various forms of collusion or collaboration between competitors, the most serious of which involve fixing prices, diving markets, restricting output and rigging bids. These categories of collusion have been shown to raise prices, reduce quality and choice, and stifle business responsiveness and innovation. They are also hard to detect, prosecute and deter. Tougher anti-cartel laws and sanctions have been a high priority for competition authorities for at least the last decade. While there is a high degree of consensus around the world as to the core tenets of the prohibitions applicable to serious cartel conduct, there is a vigorous discourse amongst authorities, practitioners, business and academics regarding the most effective approaches to sanctioning and enforcement.

At the same time, not all agreements between business rivals are anti-competitive or detrimental to consumer welfare. Some, such as joint ventures or distribution agreements, may be driven by efficiencies or may be welfare-enhancing in other ways. Competition laws and their enforcement therefore need to distinguish between different types of conduct involving competitors based on their economic rationale and likely effects.

This subject refreshes and expands understanding of the economic principles relevant to collusion (or horizontal restraints) that were introduced in the first subject in the course (Foundations: Competition Law & Economics). Students examine critically and in-depth the main prohibitions and exemptions or defences that apply to cartel conduct and other types of collaboration between competitors. They explore who should be held liable for such conduct (companies and/or individuals) and what approaches are or should be taken to sanctioning (administrative and/or criminal). Finally, students explore and assess the effectiveness of the policies and tools that competition authorities deploy in detecting, prosecuting and deterring cartels, as well as learn about and analyse the vigorous debates that relate to private actions for damages arising out of such conduct.

Highlights of the subject include:

• Critical examination of the approaches taken to the design and application of cartel laws and sanctions, drawing on examples from different jurisdictions around the world;
• Use of the rich body of theoretical and empirical research relating to cartel conduct as well as analysis of actual cases and competition authority policy documents and guidelines to aid this examination; and
• Insights and perspectives from leading stakeholders such as competition authority officials and practitioners to assist students in grappling with the challenges posed by the design and enforcement of anti-cartel rules.

The enactment of the Anti-Monopoly Law in China in 2007 was a significant step in China’s transition from a centrally planned economy to a socialist market economy. In a short period of time, China has become a globally important competition law jurisdiction and increasingly crucial area of study and practice for competition lawyers, businesses, and enforcement agencies within and beyond China. This subject will provide students with a specialised, in-depth and practical understanding of the Anti-Monopoly Law, its implementing regulations, and important decisions made by the competition agencies and courts in its legal, economic, regulatory and political contexts. This subject also provides insights into the dynamics of the Chinese legal system and reform more broadly, as competition law in China sits at the intersection of law, economics, business, and politics.

Principal topics include:

• Competition law in the context of China’s reform and opening up
• Prohbitions in the Anti-Monopoly Law: monopoly agreements, abuse of dominance, merger control, and abuse of administrative power
• Chinese competition law and intellectual property
• Chinese competition law and regulated industries
• Chinese competition law and the state
• Institutional, enforcement and procedural issues relating to Chinese competition law
• International dimensions of Chinese competition law.

The high-tech sector represents an increasingly important part of the world economy and is challenging the boundaries of orthodox competition law rules and approaches. Many of the most significant cases adjudicated by competition authorities around the world involve high-tech corporations (Microsoft, Intel, Google, Apple, etc). The high-tech industry is highly dynamic and raises particularly complex issues that need to be addressed by competition lawyers. This subject will grapple with these issues at a sophisticated level so that students understand the complex legal and economic challenges raised by the new economy. The lecturer is one of the world’s leading experts in this field. He has been involved in some of the most significant high-tech cases as a partner in international law firms in Europe, as an expert witness in numerous arbitration and litigation proceedings, and as an academic, currently with posts at Tilburg University, George Mason University and University College London.

Principal topics include:

• The role of innovation as a goal of competition law
• The influence of dynamic efficiency in competition law rule design and application, including in the areas of market definition, merger review and exemptions
• The intersection between competition law and intellectual property rights, specifically as it arises in the high-tech sector
• The intersection between competition law, consumer protection and privacy law, specifically as it arises in the high-tech sector
• Competition law issues in multi-sided markets, including, for instance, search engines and the internet economy
• Competition law issues raised by disruptive business models, such as Uber and Airbnb
• Major cases, including the United States and European Union Microsoft cases, the EU Qualcomm case, the US Apple e-book case and the EU Google case.

Governments strive to constrain runaway health care costs through competitive markets. This can be lucrative for private players and competition authorities are increasingly called upon to investigate commercial practices in the health care industry. The competition analysis must still take account of significant government and philanthropic service providers. Further, health care markets are susceptible to market failure due to information asymmetries, adverse selection, moral hazard and principal-agent problems. This subject explores the application of competition law to a broad range of such health care markets in the United States, Australia and New Zealand, with insights that will be generalisable to many other jurisdictions.

The teachers in the subject are from leading international law firm Jones Day and have many years of experience specialising in the application of competition law to the health care sector, advising clients and government agencies, and training government officials.

Principal topics include:

• Introduction to competition law and economic concepts in the context of the healthcare industry
• Health professionals and competition law
• Private health care facilities and competition law
• Public health care facilities and competition law
• Health insurance and competition law
• Competition issues arising from intellectual property protections and therapeutic good approval requirements
• Industry self-regulation and participation in government processes.

Intellectual property (IP) rights support growth by promoting innovation through the offer of a temporary ‘monopoly’ to creators and inventors. However, such rights can also stifle growth where transaction costs are high or rights are fragmented in a way making them hard to access. Poorly designed intellectual property rules can help established players in a market obstruct new players by impeding their access to technology and content. A carefully designed and dynamic intellectual property system can, by contrast, complement the spur that competition gives to innovation by enabling follow-on innovation. The interface of intellectual property and competition law is especially crucial to this goal. Taught by two experts in the fields of competition law and intellectual property, this subject examines the interface, looking both at how competition law regulates intellectual property and ways in which competition policies may be found within the intellectual property systems. Relevant Australian and comparable law will be examined, along with case studies in topical areas such as book publishing, news media, large datasets, file-sharing and luxury brands.

This subject provides an examination of the interface between the legal property rights created by intellectual property statutes (and at common law) and the body of law that controls and regulates anti-competitive practices.

Principal topics include:

• Theoretical approaches to the accommodation of intellectual property rights to competition law
• Policy goals of intellectual property and competition law
• Limitations and controls placed over the granting, subsistence, scope and infringement of intellectual property rights under statutory and common law regimes
• Statutory and compulsory licensing under the Patents Act 1990 (Cth) and Copyright Act 1968 (Cth)
• Part IV of the Competition and Consumer Act 2010 (Cth): outline, concepts and special provisions in respect of intellectual property
• Dealings in intellectual property under intellectual property and competition statutes.

This subject will examine in depth the implications of the transnational features and effects of mergers, unilateral conduct, cartels and other business activities for the design and enforcement of competition law and policy . Students will examine rules governing extraterritorial jurisdiction, discovery, recognition and enforcement of judgments, and extradition in the international competition law context. They will learn about the ways in which competition authorities cooperate with each other and the roles played by regional and international organisations and networks. The subject also canvasses the relationship between competition and trade policies, and the particular challenges facing small and developing economies in a globalised world.

Highlights of the subject include:

• Critical examination of how tensions between considerations of national sovereignty and international comity arise in the competition law context
• Exploration and critique of the ways in which governments and competition authorities are seeking to meet the enforcement challenges posed by anti-competitive conduct that has multi-jurisdictional effects
• Consideration of the strategic opportunities and challenges for multinational business organisations in managing competition law risks
• Special focus on the increasing significance of competition policy, law and enforcement in international trade and regulation and the implications for small and developing economies
• Insights and perspectives from leading stakeholders such as competition authority officials and practitioners to assist students in grappling with the challenges posed by the design and application of competition policies and rules in cross-border settings

This subject will examine the policy objectives underpinning consumer protection laws, including the intersection between consumer and competition policies. Students will develop a clear understanding of the key areas of regulation, including various forms of misleading and deceptive conduct, unfair practices and contract terms regulation, consumer guarantees and warranties, and product liability and safety regulation. They will examine key enforcement tools and mechanisms for consumer redress, focusing particularly on the challenges posed by e-commerce, and explore the often complex institutional arrangements involving national and international bodies, as well as non-governmental organisations, in this field. This subject is international and comparative in its scope and draws on examples from a wide range of jurisdictions around the world, but with a particular focus on consumer policy, law and enforcement in the Asia-Pacific region.  

Highlights of the subject include:

• Critical examination of the policy objectives and priorities underpinning, and the approaches taken to the design and application of, consumer laws, including variations between developed and developing countries in this context
• Case studies that illustrate the practical challenges associated with enforcing consumer laws, with particular emphasis on the issues that arise in the context of growing international trade and e-commerce

Insights and perspectives from leading stakeholders such as consumer enforcement authority officials, intergovernmental and nongovernmental officials and practitioners to assist students in developing a sophisticated appreciation of the issues facing the development and practice of consumer law and policy, particularly in the Asia-Pacific region.

European Union competition law is often emulated by other competition systems around the world and hence is a crucial area of study and practice for competition lawyers and enforcement officials beyond Europe. At the same time the ‘template’ nature of the EU system may obscure the degree to which thinkers, policy makers and decision makers at various levels in Europe embrace different and sometimes contradictory visions of the goals and functions of competition law - resulting in fractures and incoherence within the EU system. This subject will provide students with advanced in-depth insights into the origins and development of competition law in Europe, while challenging them to grapple with the theme of the ‘contestedness’, as manifest in the ‘reformation’ of EU competition law’s substantive and enforcement aspects, and in the ‘counter-reformation’ movement. Various processes of ‘modernisation’ will be studied, for example in relation to Article 101 and Article 102 of the Treaty on the Functioning of the European Union (TFEU), in order to illustrate discontinuities of varying degree between legal doctrine and day-to-day practice, and between law and policy.

The teacher in this subject is one of Europe’s leading competition law scholars who has published extensively and taught around the world.

Principal topics include:

• Competition law in the context of the European integration process
• Intellectual origins of EU competition law
• The law on vertical restraints in a common law context
• The rise of alternative visions for EU competition law and for the European Commission
• Article 101 TFEU – reformation and counter-reformation
• The activation of EU competition law enforcement at the level of the Member States
• Article 102 TFEU – reformation and counter-reformation
• The Member States as ‘subjects’ of competition law
• Current trends in the law and enforcement of EU competition law: institutionalising contestedness.

Competition Law is an area of law with mixed legal-economic content. The central disciplinary underpinning of competition law is economics. It is therefore essential that those practising in this field, whether as legal advisors to business, competition authority staff, or members of tribunals or courts have a solid grounding in the economic theories, concepts and techniques that underpin the policy, law and enforcement in this field.

This foundational subject introduces students to the history and spread of competition law across the world over the last century and to the range of objectives, influenced by various economic schools of thought, that have informed its development in different places and at different times. It ensures that students are well-versed in core economic vocabulary, concepts and frameworks and the ways in which they are translated into categories of legal prohibitions and enforcement approaches, common to all competition systems.

The subject sets the foundation for the course, providing crucial groundwork that will equip students to confidently tackle the economic content of the remaining subjects in greater detail. While the subject includes material with basic numerical equations, examples and diagrams, it does not require students to have advanced mathematical or statistical background knowledge or skills.

Highlights of the subject include:

• Practical application of economic concepts and techniques through problem-based learning activity; and
• Expositions and insights from leading economists and practitioners on various aspects of economics and the role of economists in competition law and practice.

This subject examines the challenges and dynamics influencing the institutions that administer and enforce competition and consumer laws. It also explores the role of international institutions in promoting or enforcing competition law and policy and their various structures and modes of influence.  Although the subject’s focus is on competition and consumer authorities, the nature and role of central prosecutorial agencies, tribunals and courts are also examined. Students will be challenged to engage with a range of institutional issues including agency models, mandate, governance structures, investigative tools and processes, enforcement, compliance and advocacy and evaluation of effectiveness. Students will undertake an in-depth case-study on a competition or consumer-related body and critically analyse an aspect or aspects of its design, operation or performance against the principles developed in this subject.

This subject will provide students with international and comparative insights into a field of growing significance to practitioners in Australia and the region. While the subject will focus on the federal antitrust law of the United States (‘US’) and the competition law of the European Union (‘EU’), we will examine also the extent to which these two regimes provide models for other regimes, with particular attention paid to the Anti-Monopoly Law of the People’s Republic of China ‘(PRC’). The subject will explore how competition laws are justified, and the extent to which different regimes converge and diverge, and the reasons for this. An understanding of the US and EU regimes will equip students to analyse the likely responses to anti-competitive actions in many other regimes, and the focus on China will be particularly useful to students within the Pacific region.

Principal topics will include:

• The policy foundations of, and history of approaches to, antitrust law in the US and competition law in the EU
• The structure of the two regimes, the role of competition authorities, and the role of public and private enforcement
• Comparative analysis of the substantive laws relating to agreements and multi-lateral anti-competitive conduct (s 1 of the Sherman Act, and article 101 of the Treaty on the Functioning of the European Union (‘TFEU’))
• Comparative analysis of the approach taken to cartels, with an examination in particular of differing enforcement methods (civil and criminal)
• Comparative approaches to the treatment of oligopolies, with particular reference to the concept of ‘conspiracies’ in the US, and ‘concerted practices’ in the EU
• Comparative approaches to the control of monopolisation and dominant firm abuse (s 2 of the Sherman Act and article 102 of the TFEU), with particular reference to pricing conduct (excessive, predatory and discriminatory pricing practices)
• The development, structure, and application of competition law in the PRC, including a consideration of the challenges facing new regimes
• Comparative approaches to merger control in the US, EU and PRC, with particular reference to the establishment of jurisdiction, the operation of the substantive test, and the application of remedies
• Jurisdiction, extra-territoriality, and bi-lateral and multi-lateral cooperation mechanisms in the application of competition law

This interdisciplinary subject will examine the relationships between international trade and competition policies from both legal and economic perspectives. The subject will focus on anti-competitive practices of an international scope and how they may be addressed by trade and competition rules. It will canvass the tensions and complementarities between these two areas of policy, as well as incorporate general public policy, commercial diplomacy and institutional considerations. In addition, anti-dumping/safeguards law and practices and how they relate to competition law will be taken up and their link with market access opportunities explained.

The subject will include a discussion of failures of the multilateral trading system to address international competition law problems, and options to regulate competition law in the World Trade Organization and through other means. Contemporary issues driving new initiatives such as the Trans-Pacific Partnership, Transatlantic Trade and Investment Partnership and the Regional Comprehensive Economic Partnership will be discussed.

Mr Qaqaya was the head of the United Nations Conference on Trade and Development (UNCTAD) Competition and Consumer Policies Branch for almost 20 years and has an in-depth knowledge and vast practical experience in advising governments in these fields.

Principal topics include:

• Introduction to trade and competition policies: key definitions, concepts, contexts and interdependencies
• Framework for trade liberalisation: a review of trade theories, trade policy, rent seeking, lobbies, corruption and incentives
• Principles of the trading system: most-favoured-nation, non-discrimination, national treatment, prohibition of quantitative restrictions, prohibition of dumping and subsidies, anti-dumping actions and countervailing measures, General System of Preferences (GSP) for developing countries, regional trade arrangements
• Principles of competition policy: theoretical models vs competition restrictions in real world, including dominance, strategic behaviour, anti-competitive mergers, horizontal and vertical agreements and government restrictions
• The interface between the competition and trade policies: comparison of analytical approaches used by competition law and trade policy, including in relation to market definition, harm assessment, remedies, sanctions, countervailing and retaliation measures, dispute resolution, arbitration and judicial review.

This subject will provide students with an in-depth understanding of the legal rules and economic principles that underpin the review of mergers and acquisitions and the types of information and analyses used to assess the competitive effects of these transactions. Students will examine how ‘special’ cases, such as joint ventures, failing firms, strategic and minority stakes, and creeping acquisitions are dealt with, and will learn about the procedures used by competition authorities and the strategies employed by merger parties in the review context.

Highlights of the subject include:

• Critical examination of the approaches taken to the design and application of merger laws, review processes and remedies, drawing on examples from different jurisdictions around the world;
• Use of the rich body of theoretical and empirical research relating to mergers as well as analysis of actual cases and competition authority policy documents and guidelines to aid this examination; and
• Insights and perspectives from leading stakeholders such as competition authority officials and practitioners to assist students in grappling with the challenges posed by the design and enforcement of merger rules and processes.

This subject provides students with a sophisticated understanding of the economic theory and principles underpinning the regulation of utility infrastructure and services such as telecommunications, gas, electricity, rail, airports and ports. Such regulation often determines the level of competition, the prices paid by consumers and the returns to investors in these industries. The subject examines in detail the access regimes in the Australian Competition and Consumer Act (2010), and how they have been practically applied. Drawing comparisons with the experience in this field in Europe and the Asia-Pacific region, it explores how regulators and the courts have determined which services should be subject to regulation and what principles and processes regulators have used to set terms and conditions (including prices) for these services. The lecturers in the subject comprise an economist and a lawyer with over 25 years’ combined experience working for competition regulators, the courts, regulated entities and economic consulting and legal firms representing both infrastructure access-seekers and access-providers on regulatory issues.

Principal topics include:

• Underlying economic principles and policy intention behind third party access and utility infrastructure regimes in Australia and other overseas jurisdictions
• Outline of third party access regimes in Part IIIA and Part XIC of the Competition and Consumer Act (2010)
• Consideration of previous and ongoing examples of the application of access regimes in Australia and other overseas jurisdictions
• Legal and economic meaning of key terms and expressions in access regimes (e.g. promotion of competition, efficient use/operation of infrastructure/facilities and legitimate business interests of access provider)
• Assessment of whether legislative frameworks and administrative and enforcement approaches are well designed to achieve the regulatory objectives of third party access and utility infrastructure regimes

One of the means by which firms may behave anti-competitively is by engaging in unilateral conduct that damages the competitive process and consumer welfare. Such conduct may be described in various ways in different jurisdictions, including as monopolisation, abuse of dominance or misuse of market power. However, the rules that apply to it share a common aim, namely to target conduct by firms with market power that is likely to harm competition and reduce consumer welfare.

Anti-competitive unilateral conduct generally involves conduct by a firm that has substantial or monopoly/monopsony power in a market and uses that power to implement a strategy that is likely to harm competition. Debates and divergence between jurisdictions in relation to unilateral conduct relate to the level of power that should trigger legal prohibitions, the types of strategies that are likely to have anti-competitive effects and how such effects should be established and assessed. In recent years, such debates have focussed on conduct by large firms in the information technology sector.

This subject explores the approaches used by competition authorities to address anti-competitive unilateral conduct. Differences in approach between jurisdictions are critically analysed. Building on learning in previous subjects, the subject examines what is meant by unilateral market power and the conditions that enable unilateral power to be used to implement an anti-competitive strategy. Unilateral conduct that gives rise to a competition concern may take various forms, the most common categories of which are analysed in detail in this subject. Such categories include conduct involving refusals to supply and predatory pricing. However, a difficulty in addressing anti-competitive behaviour of this type is that it is not readily distinguishable from highly aggressive competition. Given this, various tests that have been used and the evidence relevant to making this distinction are examined. Seminal decisions by competition authorities and courts as well as industry case studies are used to provide insights into the competition analysis of unilateral conduct.

Highlights of the subject include:

• Critical examination of the approaches taken to the design and application of unilateral conduct laws, drawing on examples from different jurisdictions around the world;
• In-depth case studies of unilateral conduct in a range of industry sectors with a view to ensuring students can properly analyse the rationales for such conduct and assess their likely effects on competition; and
• Insights and perspectives from leading stakeholders such as competition authority officials and practitioners to assist students in grappling with the challenges posed by the design and enforcement of unilateral conduct rules.

Advanced Construction Law is designed as a capstone subject, 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.

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.

The complexities of the commercial and technical environment in which construction projects are undertaken make disputes virtually inevitable. Participants in the industry – whether lawyers or industry professionals – therefore need to be aware of, and able to apply, a range of dispute avoidance and management techniques when putting together contractual documentation or administering projects. These options are constantly evolving, with recent examples including the increasing use of disputes boards and court-initiated procedures such as those being implemented by the Technology Engineering and Construction List of the Victorian Supreme Court.

The subject lecturer, David Opperman, is able to bring to the classroom extensive experience in the active resolution of disputes in construction projects by mediation and other alternative dispute resolution processes, as well as through international and domestic arbitration and litigation processes. He also involves guest lecturers who have specialist, cutting-edge experience in dispute avoidance and alternative dispute resolution techniques.

Principal topics will include:

• Construction contract provisions relating to disputes: Objectives, approaches and enforceability
• Conflict: Conflict patterns and management
• Communication and negotiation skills
• Dispute Avoidance Procedures (DAPs), Dispute Review Boards (DRBs), Dispute Adjudication Boards (DABs) and dispute resolution advisers (DRAs)
• Alternative Dispute Resolution (ADR): Mediation (including mock mediation), senior executive appraisal/ mini trials, non-binding and binding expert determination, domestic and international arbitration and hybrid and multi-tiered processes
• Selecting the most appropriate form of DAP and/or ADR processes
• Process dynamics, options and strategic issues, including paths to ADR.

This subject develops advanced skills in the drafting and analysis of construction contracts. It covers several standard forms of construction contract, including a Standards Australia contract and an International Federation of Consulting Engineers (FIDIC) contract.  The subject teaches best practice in plain English drafting techniques and provides ample opportunity for students to exercise and be tested on their drafting skills. Students will be given individual comments on their work during the subject.

The subject lecturer and highly respected guest lecturers bring to the classroom extensive practising and academic experience in construction contracts.

This subject is designed to give students a sound understanding of the law concerning express and implied terms and the interpretation of contracts. It is also designed to develop and enhance students’ abilities to draft, analyse and administer construction contracts at an advanced level. Close study and comparison of standard forms of construction contract is a major feature of the subject. So too is the development of individual drafting skills.

Principal topics include:

• Techniques for contract drafting
• Express and implied contractual terms
• Contract interpretation and analysis
• The ongoing debate within the industry as to the role and utility of standard-form contracts.

This subject provides a detailed review and analysis of the ways in which the procurement and delivery of construction and engineering projects are changing to meet the demand for more efficient infrastructure, including improved ‘whole of life’ outcomes and the reduction of claims and disputes. There is a particular focus on integrated project delivery, collaborative contracting and new technology. The subject covers a number of the current and emerging approaches to the procurement, contracting and delivery of construction and engineering projects and reviews a number of case studies from Australia, the United Kingdom and elsewhere.

Principal topics include:

• An overview of the development of ‘collaborative contracting’ and integrated project delivery methods to date (eg joint ventures, partnering, alliancing, managing contractor, public-private partnerships, electronic document management systems, whole of life) in Australia, the UK and elsewhere
• Examining recent and emerging procurement and delivery approaches in Australia, the UK and elsewhere (including the specific legal and contractual issues implicit in such current and emerging approaches identified above), including in respect of:
  • Unsolicited proposals
  • Framework procurement models
  • Early contractor involvement (ECI)
  • Integrated project delivery (IPD)
  • Delivery partner (DP)
  • Equipment supply
  • Services alliances
  • Supply chain collaboration.
• Examining the development and implementation of Building Information Modelling (BIM) in construction and engineering projects, including the specific legal and contractual issues associated with licensing of information technology systems, intellectual property and confidentiality generally, design risk and programming.

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.

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 provides a detailed overview of construction law, projects and practice in five representative Asian jurisdictions: the People’s Republic of China, Taiwan, Hong Kong SAR, Singapore and South Korea. Through detailed explanation, analysis and case studies, students will gain an integrated and advanced understanding of the key features of each jurisdiction, both in isolation and in a comparative context. Students will develop their capacity to operate and advise in and across these jurisdictions as well as deriving lessons for application in their home jurisdiction.

Dr Arthur McInnis is the principal subject lecturer. He is the former head of the Construction Practice Group at Clifford Chance in Hong Kong. He has published extensively and lectured widely on construction topics throughout Asia

The subject provides a detailed introduction to construction law, projects and practice in five Asian jurisdictions, with reference to:

• The size and importance of opportunities and trends in their construction sectors
• Their key legal and regulatory frameworks, tender practices and project management norms
• The principal standard forms of contract in use
• Recent build-own-transfer, build-lease-transfer and design-build-finance-operate projects, and planned public-private partnerships in economic and social infrastructure
• Their resource management, financing, innovation and competitiveness on a comparative basis in the development of their construction sectors in the wider Australasian building and projects market
• Detailed case studies on construction, currently planned to include: the Beijing Metro No 4 Line and Mass Transit Railway (MTR) international projects; planning, financing, construction and appraisal of the Anhwa school project in Korea; recent NEC-procured pilot projects in Hong Kong; tendering, construction, operation and issues surrounding the Taiwan High Speed Rail project; and tendering, financing, construction and operation of the Singapore Sports Hub.

This subject will provide a detailed overview of construction law, projects and practice in four representative Middle Eastern jurisdictions: the United Arab Emirates (with a focus on Dubai and Abu Dhabi), Qatar, the Kingdom of Saudi Arabia, and Oman, with some further brief comparative analysis of Egypt, Iraq and Iran. Through detailed explanation, analysis and case studies, students will develop an advanced and integrated understanding of the key construction law-related features of each jurisdiction. The detailed treatment of both the aspects which are distinctive in each jurisdiction and those which are cross-cutting is designed to enhance the advanced knowledge and integrated understanding of students who already practice in one or more of these jurisdictions and those who are looking to expand their range of practice into them. 

The subject coordinators, William Marshall, Jeremie Witt and Debbie Barbour, bring to the subject extensive experience as construction and project finance lawyers from the Middle East. 

The subject will provide a detailed introduction to construction law, projects and practice in four Middle Eastern jurisdictions with reference to:

• The size, importance of, opportunities and trends in their construction sectors
• Their key legal and regulatory frameworks, tender practices, and project management norms
• Their principal standard forms of contract in use
• New developments surrounding modelling systems for monitoring cost, quality, and risk factors for sponsors, contractors and consultants
• Their resource management, financing, innovation and competitiveness in the development of their construction sectors, with particular focus on non-oil and gas sectors, and also considering 'contractor financing' as a means of project financing and delivery
• Detailed case studies on construction, which might include (subject to confirmation in the year of subject delivery) the Abu Dhabi International Airport project, planning and construction of the Dubai Metro project and the initial attempts to deliver under a PPP structure, the Dubai Creek canal extension and 'contractor financing', the construction of the Saudi Stock Exchange and the issues of contract risk allocation, the Doha Metro project, Qatar Airport developments and issues relevant to the Qatar 2022 World Cup, and Mussandam Gas Plant project, in Oman. 

In this subject, students explore the external constraints on construction. These are legal, via the public law of land use planning (sometimes called development control or zoning) and of applicable construction standards; and via the private law rights of those close to the project site. But they are also extra-legal, via community pressures to stop or modify planned development. The subject takes a comparative common law approach, considering a selection of Australian states and territories (including Victoria) and New Zealand, but also England and Wales, whose law remains the origin of the relevant law in Australasia, as well as in Hong Kong, Malaysia, Singapore and most of North America.

Philip Britton has extensive construction law teaching experience at King’s College London and in the Melbourne Law Masters and has published on ‘neighbour issues’ in construction. Melbourne colleagues will also contribute, together with guest speakers from ‘the field’.

This subject provides an examination of the legal and non-legal issues which operate as external constraints on construction projects, within a comparative common law context.

Principal topics include:

• The public law of land use planning: its aims, structures, operation in practice and openness to legal challenge
• The law of ‘building control’, via applicable construction standards: definitions, operation, enforcement and inspectors’ powers, including ongoing reforms in Victoria
• The private law rights ‘neighbours’ enjoy against the negative aspects of construction, via property/land law and the law of tort
• The remedies available in court for actual or potential infringement of these rights and judges’ approaches to the choice of remedy, including (in particular) to the assessment of damages
• How the structuring of the project may determine who bears the ultimate cost (or liability) if a neighbour successfully challenges the whole project, or where or how it is being constructed
• The powers (legal and extra-legal) of community action groups to influence decisions about new construction and how project sponsors may respond.

A distinguishing characteristic of international construction projects is the challenging environment in which they often proceed. Where there are stakeholders from several different countries, the challenges can be cultural, economic, legal, physical, political and technical. A number of troublesome issues repeatedly manifest themselves on projects around the world. By understanding how these issues affect projects, participants might not only gain a commercial advantage, but also avoid costly disputes. This subject seeks to explore these troublesome issues from a commercial and industry-focused point of view.

Paul Tracey has 30 years of international experience acting as a commercial manager and expert witness. Brodie McAdam is a solicitor and Program Leader of the Construction Law and Practice Masters at the University of Salford.

Within a comparative common law context emphasising the Middle East, the United Kingdom and other jurisdictions, this subject examines the legal and non-legal issues that operate as external constraints on construction projects.

Principal topics include:

• Contract formation and typical contractual arrangements in practice on international construction projects
• The approach to sanctity of contract around the world
• Commercial risk management on international construction projects, including unforeseen or latent conditions, caps on liability, consequential loss, force majeure, choice of law and dispute resolution mechanisms
• Managing time, cost and quality risk on international construction projects using contractual mechanisms, including the approach adopted in various countries to calls on performance bonds, and valuation of variations
• Preparing prolongation and disruption claims on international construction projects
• The role of the engineer or contract administrator
• Liquidated damages for delay and performance
• The influence of national culture on the preparation, evaluation and negotiation of time and money claims on international construction projects in the Middle East.

Cross-border construction contracting, and the avoidance and conduct of 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, and the options for, and methods of dealing with, dispute resolution, along with the intricacies associated with those processes in an international context.

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
• Standard-form contracts for international construction projects (including the International Federation of Consulting Engineers (FIDIC) suite and variants promulgated by multilateral development banks)
• The main distinctions of principle and practice between the prosecution, determination or resolution of construction disputes in different jurisdictions
• 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.

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.

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.

The concepts of urban sustainability are driving the regulation of the built form of our increasingly large, complex and smart cities. The global sustainable development goals have also led urban regulators to embrace more participatory and innovative forms of governance for our society and economy.

This subject explores how those concepts apply in the regulation of planning and construction and the framework and governance for the development of smart, resilient and sustainable cities. In particular, it will focus on the role of municipal and state laws in achieving liveable communities.

The subject will cover the Environmentally Sustainable Development (ESD) Local Planning Policies and consider whether planning regulation in Victoria incorporates best practice in environmental assessment. It will explore the interesting tension between building and planning law and the respective contribution of each in driving sustainable outcomes.

Another component of this subject will follow the introduction of building information modelling (BIM) arising out of the architecture, engineering and construction management sectors. This topic offers a further but alternate perspective of shifting regulatory dynamics that pitch towards sustainability objectives, whether on built environment projects or across broad-scaled applications.

This subject has been designed for those interested in the intersection between planning and construction law and environmental law. The course includes guest lectures, visiting some of Melbourne’s iconic green buildings and assessing urban planning initiatives, such as the Queen Victoria Market Redevelopment, for their contribution to the development of Melbourne as a sustainable city.

Principal topics include:

• Sustainability in the city; exploring new ideas on what sustainable development means in an urban setting, policy priorities for sustainability, ideas of new governance for sustainability, and new economic and legal models to achieve sustainability outcomes
• Green building and climate change developments, directions and policy, including resilience and risk
• Urban planning and sustainability, including the use and role of land-use planning laws and local governance to achieve improved sustainability features in the built urban environment, focusing on Victorian laws
• The broad regulatory setting for green buildings and urban sustainability, including a sustainability analysis of the National Construction Code
• Sustainability rating tools for energy efficiency and the regulation of green buildings, through voluntary and mandatory schemes, including GreenStar and BASIX, and a comparison of green rating and standard tools in Australia (NABERS), the United States (LEED) and the United Kingdom and Europe (BREEAM)
• An introduction to building information modelling (BIM) relative to sustainability opportunities and challenges, from construction projects and local and international policy perspectives
• An applied case study analysis of how integrated sustainable urban construction law works in practice.

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).

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 construction industry and its legal advisers. This subject, taught by two leaders in the field who bring 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
• Approaches to the categorising of PPP projects, including the broad distinction between ‘economic’ and ‘social’ infrastructure
• The dynamics of financing versus the fiscal responsibility of repayments and funding
• Features specific to the structuring and procurement of projects within each of these categories, including fundamental aspects such as the need to secure an income stream in relation to economic infrastructure and the relevance of the distinction, in relation to social infrastructure, between delivery of physical infrastructure and delivery of services
• Features specific to particular sectors within each of these categories (eg toll roads, power stations, water, health care, education and corrections)
• The various policy frameworks in place in Australia (and leading international agencies) for evaluation and engagement of private sector involvement in public infrastructure delivery
• Drivers that underpin the structuring, negotiation and delivery of PPP projects, including financing, probity and value for money (including public sector comparator mechanisms), competition, tax (including issues derived from Australia‘s federal structure as opposed to unitary systems in other countries) and construction risk.

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

Every year, about half of the value of construction activity in Australia relates to the building, conversion 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 impacting on millions of people throughout the community. Despite this, residential construction law has, until recently, received relatively little attention from the majority of construction law practitioners, and not just in Australia. This innovative subject, taught by Matthew Bell and Suzanne Kirton, seeks to address this deficiency and introduce students to an evolving area of construction law in a comparative context, with material from Australasia (including Victoria) and from other members of the common law family of legal systems. Practitioners will make a significant contribution as guest lecturers.

Principal topics include:

• Legislation specifically applicable to residential construction
• Legal protection for ‘consumers’ in relation to residential construction
• Legal obligations undertaken by the seller in relation to the quality of a new residential building
• Means by which an off-plan buyer of a new residential house or unit may be protected against the financial failure of a project party
• Remedies in relation to defects in the structure or common parts of multi-unit developments
• Rights of successors in title to enjoy the remedies against the developer or any other project party responsible for defects
• The impact of limitation periods upon remedies for different categories of defects
• The role of insurance in protecting home-owners against the costs of repairs or defects claims
• The impact of mandatory or voluntary registration or accreditation systems for residential developers and suppliers of construction services

While ‘Construct Only’ and ‘Design and Construct’ delivery methodologies remain the most common form of construction procurement, principals and contractors increasingly are delivering construction projects via innovative procurement methodologies. This subject—designed to complement the existing infrastructure delivery subjects already offered within our program—provides students with a detailed knowledge of tendering, specialised forms of construction procurement and other key contract forms currently in use in the Australian construction and infrastructure market. This subject also provides an overview of the key legal and commercial issues affecting these procurement methods and specialised construction contracts.

The lecturer, Richard Wilkinson, is a construction lawyer and alumnus of the Master of Construction Law. In addition to bringing to the classroom his own extensive experience in construction procurement law, Richard harnesses the specialist expertise of leading construction practitioners as guest lecturers.

Principal topics include:

• Invitations to tender
• Unsolicited proposals
• Collaborative contracting
• Managing contractor agreements
• Engineering, procurement and construction agreements and engineering, procurement and construction management agreements
• Consultancy agreements
• ‘Design and construct’ joint venture agreements
• Consortium agreements
• Contracting arrangements in the renewables sector
• Design-build-operate agreements and design-build-operate-maintain agreements.

This subject introduces the fundamentals of accounting and financial statement interpretation within the context of government and commercial environments. Commencing with an examination of the principal financial statements the subject navigates the nature and types of transactions undertaken by organisations and how these transactions are recorded and reported. In the second half of the semester the subject addresses the key techniques for deeply assessing the financial performance, funding capacity and solvency of organisations. Finally the subject concludes with an examination of the accounting policy choices organisations may use to present their financial statements in the best possible light.

Principal topics include:

• The purpose of accounting
• Accounting reports and analysis
• Financial statement ratios
• Financial statement disclosures
• Accounting policy choices and earnings management
• Accounting reports and business failures
• The limitations of accounting information.

Given the increasingly strong economic tie between Australia and China, there is an ever-growing need to have an advanced knowledge of Chinese laws, in particular those concerning the company and securities market.

This specialist subject is designed to provide students with an opportunity to study key issues of Chinese corporate and securities laws in greater depth than is often the case in the typical introductory Chinese law course. To this end, it examines not only the law on the books but also the law in action, as well as recent developments in the area.

This subject is developed and delivered on the basis of the expertise of Dr (Robin) Hui Huang, who is one of the well-respected scholars in corporate and securities law with a particular focus on Chinese issues at the international level. It is a highly valuable subject for students intending to do business and invest in China.

Principal topics will include:

• Introduction (providing background information about China and the Chinese legal system)
• Chinese financial markets and regulatory framework
• Incorporation and corporate personality (including foreign investment enterprises)
• Corporate governance issues
• Fundraising and disclosure regime
• Market misconduct
• Takeover of listed companies
• Cross-border merger and acquisition.

Company takeovers are an integral part of stock markets in Australia and overseas. Their regulation seeks to deal with the often competing objectives of market efficiency and fairness to shareholders. This subject examines the laws and rules in the area, from both a theoretical and a practical point of view and deals with the key legal concepts and steps that occur in a typical takeover bid and takeover defence, illustrated by actual transactions. The lecturer is a practising takeover lawyer, textbook author and member of the Takeovers Panel—Australia’s takeover dispute resolution body—which helps ensure that the subject matter is topical and current.

Principal topics include:

• The Eggleston principles
• The 20% rule
• Shareholding disclosures
• Exempt acquisitions
• Pre-bid activity
• Scheme alternative
• Bidder’s statements
• Action during the bid
• Defensive strategies
• Target’s statements
• Compulsory acquisition
• Role of the Australian Securities and Investments Commission (ASIC) and the Takeovers Panel
• Dispute resolution
• Compulsory acquisition.

This subject considers the different tools used by corporate law to, on the one hand, enable the corporate form to provide an efficient and effective means of generating value and, on the other hand, to regulate the agency problems generated by carrying out business activity through the corporate form. In particular, the subject will consider: the distribution of power within the corporation; directors’ duties and their enforcement; the use and abuse of executive compensation; the role of the market for corporate control in holding directors to account; and minority shareholder protection. The subject takes an explicitly comparative approach, with a primary focus on the United Kingdom and the United States, and to a lesser extent on Germany.

Principal topics will include:

• The economic tensions of the corporate form: Authority versus responsibility, the economic agency cost problem, managerial agency costs and controlling shareholder agency costs
• The regulatory strategies available to address these tensions
• Shareholder primacy versus director primacy/the balance of power in the corporation: Appointment and removal rights, initiation rights and decisions rights
• Directors’ duties:
  − Duty of care, business judgment rule and duty of care liability waivers
  − Duty of loyalty and self-dealing, conflicted transactions and corporate opportunities
  − Duty to promote the success of the company and stakeholder interests, enlightened shareholder value versus pluralism, the costs of decision making and stakeholder interests
• Board structure and composition: Composition themes, committee structures, composition and corporate performance
• Corporate governance and gatekeeper regulation: The role of the auditor as independent gatekeeper, the impact of Enron and United States corporate and audit failures and auditor independence regulation
• Executive compensation: Agency cost solution or cost problem and regulatory approaches to executive compensation
• The market for corporate control: As agency cost control, the pros and cons of takeover defences and models of takeover defence regulation
• Corporate ownership structures and convergence: Blockholding versus widely held companies, the controlling shareholder agency problem, efficient versus inefficient blockholding and the scope for convergence.

Corporate bankruptcy and corporate rescue pose fundamental questions for the insolvency regime. This subject examines some of the central rules, policies and principles of corporate bankruptcy and insolvency law, as well as the economic and social objectives attributed to the bankruptcy and insolvency system. The subject will be taught from a comparative perspective, drawing upon the laws of Australia, New Zealand, Canada, the United States and the United Kingdom. A comparative perspective will enable students to examine and critically evaluate the varied legal solutions to common insolvency law issues. This approach will allow students to acquire advanced and specialised knowledge in recent developments in insolvency law. The lecturer is a Professor of Law at Western University in Canada and he has taught subjects in insolvency and commercial law at universities in Canada, the United States, New Zealand and Australia.

Principal topics include:

• Historical overview (a discussion of the origins of insolvency law to place current developments in context)
• Modern insolvency law objectives and theory (students will consider competing theories of modern insolvency objectives, contrasting broader distributional and public interest theories with a pro-creditor approach)
• Initiating bankruptcy proceedings against a corporation (students will assess how various jurisdictions enable creditors to initiate an involuntary corporate bankruptcy)
• Voidable preferences (students will evaluate various statutory models that have emerged to cope with the problem of debtor corporations making preferential payments to favoured creditors prior to bankruptcy)
• Director liability and the insolvent corporation (an assessment of the risk of personal liability of directors in the context of corporate insolvency)
• Equitable subordination (an emerging issue in Canada, and long established in the United States, is whether a court has jurisdiction to equitably subordinate the claim of a creditor in a corporate bankruptcy)
• Corporate rescue or liquidation? (an evaluation of the trend from traditional corporate rescue law (where the company is rescued in some form) to the more recent development of corporate liquidations being carried out under a corporate reorganisation statute)

A corporation that wishes to raise funds in Australia, either for a specific purpose or for general business purposes, can do so either by borrowing (creation of debt) or by offering securities (creation of equity). This subject is concerned with the regulation of offering securities. The fundamental premise of the regulation is that the offering corporation should provide all relevant information (mandatory disclosure) and investors should then decide whether to invest. The subject will examine the regulatory model, the rationale for the model and aspects of the model and other mechanisms (such as the role of securities exchanges) that may impact in a practical way on the offering. Globalisation means that offerings may be subject to requirements in a number of jurisdictions and so it will be important to consider whether the similarities and differences between jurisdictions are significant. The classes will involve a mix of lecture-style presentations and problem-solving worked on in small groups.

The subject will be of interest to those who work in a corporate advisory environment or who wish to do so

Principal topics include:

• The disclosure principle
• Debt and equity as alternatives
• Different equity-raising alternatives
• Outline of the regulatory situation
• When is a disclosure document required?
• Different types of disclosure documents
• Content of disclosure documents
• Liability for defective disclosure documents
• Due diligence defence
• Other defences
• Restrictions on advertising and securities hawking
• The role of the underwriter
• The role of the Australian Securities and Investments Commission (ASIC)
• The role of the Australian Securities Exchange Ltd (ASX)
• Continuous disclosure.

Corporate governance is of national and international importance. This subject has a strong focus on the law relating to corporate governance, particularly the duties and responsibilities of company directors and other officers, primarily from an Australian perspective but also considering the approach taken in other jurisdictions. The director has been described in one court judgment as “an essential component of corporate governance” who is “placed at the apex of the structure of direction and management of a company”.  The lecturer is the author of leading publications dealing with corporate governance, including the major Australian book on directors’ duties, and he has also been involved in a number of corporate governance reforms enacted by Parliament.

Principal topics include:

• The concept of corporate governance
• Overview of the current framework of corporate governance and the duties of directors and other officers
• Who is subject to duties?
• To whom are duties owed?
• Duties to act with care and diligence, in the best interests of the company, and for a proper purpose
• Duty to avoid conflicts of interest
• Duty to prevent insolvent trading
• Role of the Australian Securities and Investments Commission (ASIC) in enforcing directors’ duties
• Role of shareholders in corporate governance
• Role of industry corporate governance guidelines and the Australian Securities Exchange (ASX) Corporate Governance Principles and Recommendations.

The law of corporate insolvency plays a significant role in a modern economy. Recent economic downturns, coupled with high-profile corporate collapses, have emphasised its importance. However, several parliamentary and other enquiries have highlighted its inadequacies and shortcomings. This subject, taught by a lawyer who practises day-to-day in the area, will focus on current issues in corporate insolvency. It will be of particular relevance to practitioners whose work involves such issues—whether from the ‘back end’ (eg litigators) or ‘front end’ (eg transactional, banking or property lawyers who need to anticipate them).

Students will be expected to have some background knowledge in the subject matter before enrolling in this subject. At the least, they should have or obtain (for instance, by previous study in corporations law or by pre-subject reading) a general familiarity with the formal regimes (i.e. liquidation, administration and receivership) and relevant statutory provisions as a backdrop against which to consider those topics and issues.

Principal topics include:

• Foundations of insolvency law: History, philosophy, policies and principles
• Parri passu: The ranking of claims; priority creditors; the effect of secured credit
• Insolvency of corporate groups
• Avoidance of antecedent transactions
• Corporate rescue: Voluntary administration and deeds of company arrangement (DOCAs)
• Receivership; intersection with other insolvency regimes
• Restructuring: Schemes of arrangement, DOCAs and informal mechanisms.
• Qualification, regulation and supervision of insolvency practitioners

As a result of the recent Global Financial Crisis (GFC) around the world, numerous companies have been confronted with financial difficulties. Sometimes those difficulties resulted in a bankruptcy or comparable insolvency proceedings. Due to globalisation, such insolvency could have cross-border effects, such as the insolvency of Lehman Brothers in 2008. International Corporate Insolvency raises issues on substantive insolvency law as well as on conflict of laws, and explores those effects from various perspectives, especially on a multilateral level. Its relevance can be found in the attempts to facilitate restructuring of financially distressed companies worldwide. Professor Vriesendorp, from Tilburg University, The Netherlands, has previously taught the subject and is a well-known scholar with practical experience in the field of (international) insolvency law as restructuring partner at Dutch law firm De Brauw Blackstone Westbroek, Netherlands.

Principal topics include:

• Introduction/recapitulation: what is insolvency/insolvency law?
• Causes of insolvency: external, fraud and mismanagement
• Creditor-oriented system (United Kingdom, Netherlands, Australia) versus debtor-oriented system (United States, France)
• Proceedings from an international perspective: European insolvency regulation/UNCITRAL Model Law on Cross-Border Insolvency and relevant forums
• Role and position of trustee/administrator versus debtor-in-possession
• Role and position of creditors
• Role and position of the court
• Position of the bank, security interests and financing restructuring
• Transfer of assets to Newco/composition and rescheduling of debt
• Fraudulent/wrongful trading and director‘s liability
• Termination of the proceedings.

The Global Financial Crisis (GFC) has graphically demonstrated how interconnected capital markets are worldwide. The GFC did not start in the international capital markets, but these markets became the purveyors of risk and financial calamity around the world. This subject will provide an understanding of the development of international capital markets, the most burning current issues in developed and developing economies and the regulatory responses. Associate Professor Jordan is a widely recognised expert on international capital markets.

This subject looks at the historical development of and major trends in international capital markets from a regulatory perspective.

Principal topics will include:

• Development of regulatory techniques to address international securities transactions, such as mutual recognition, harmonisation etc.
• The changing role of stock markets
• The interplay between regulated and unregulated markets
• The operation of the Euromarkets and recent attempts to create a pan-European and trans-Atlantic capital market
• United States regulatory initiatives, including Regulation S, Rule 144A, American Depositary Receipts and the Multijurisdictional Disclosure System
• The role of international financial institutions such as the World Bank and the International Monetary Fund (IMF), and initiatives such as the Financial Sector Assessment Programs
• The role of the International Organization of Securities Commissions and the creation of international standards
• Developments in developing and transitional markets (e.g. China, Brazil etc.)
• Islamic finance.

The subject may include case studies of recent transactions in the international markets.

This subject examines the law governing the registration, regulation and termination of corporations in Australia. It will explore a range of theoretical and practical issues concerning the corporation and its participants, with a particular emphasis on corporate law in practice.

Principal topics will include:

• Introduction to the historical, theoretical, legal and constitutional basis of corporations and corporations legislation
• The corporate constitution
• Financing the corporation
• Directors’ and officers’ duties
• Shareholders’ remedies
• Aspects of corporate insolvency.

The fallout from the Global Financial Crisis (GFC) has put significant pressure on securities markets in Australia, which form part of the broader market for financial products and services. In the past few years, there have been significant developments in relation to the operation of the market for securities, including government approval for a new market operator (Chi-X). There has also been a regulatory response to the collapse of high-profile financial service providers, such as Storm Financial and Opes Prime. This subject will deal with these developments as well as recent case law relating to the responsibilities of listed entities, especially under the continuous disclosure regime and with other examples of market misconduct.

Principal topics include:

• The policy basis for regulation of securities markets and participants
• The evolution of Chapter 7 of the Corporations Act 2001 (Cth) as it applies to securities transactions
• The key concepts of securities, financial products and financial services
• What is a financial market?
• Licensing of financial markets and financial service providers
• The role of the Australian Securities Exchange (ASX) in regulating market participants
• The future of financial advice reforms
• The role of the ASX in regulating listed entities
• Continuous Disclosure – law and practice
• The relationship between the ASX and the Australian Securities and Investments Commission (ASIC)
• Enforcement of ASX listing rules
• Regulation of financial service providers
• Prohibited market conduct
• Insider trading.

In the field of takeovers, company mergers and other corporate reconstructions, schemes of arrangement are playing an ever-increasing role. In the takeover sphere, schemes have often been used in recent times as an alternative to using the takeover provisions in Chapter 6 of the Corporations Act 2001 (Cth). This subject will address what a scheme of arrangement is and the role that schemes play in these fields of commercial activity, particularly in the area of takeovers. The role played by the court and the Australian Securities and Investments Commission (ASIC) at each relevant stage of the scheme process, as well as practical considerations and guidance in connection with obtaining court approval to a scheme, are among the topics that will be addressed in this subject. The lecturers are both commercial barristers at the Victorian Bar whose areas of practice include schemes of arrangement.

Principal topics include:

• What a scheme of arrangement is and the role schemes play in the field of takeovers, company mergers and other corporate reconstructions
• The statutory framework applicable to schemes of arrangement
• Statutory and other requirements governing schemes of arrangement and their approval by shareholders and the court
• The role of the court at each of the first court hearing (the ‘meeting hearing’) and the second court hearing (the ‘approval hearing’)
• The role of ASIC
• The approach adopted by the Takeovers Panel to schemes of arrangement
• Practical considerations and guidance – including potential pitfalls – in connection with the process of obtaining both shareholder and court approval
• Issues arising in connection with the obtaining of shareholder and court approval. Topics to be drawn from matters such as:
  • Notice requirements
  • The scheme booklet: Content and approval
  • Meetings of shareholders: How, what, when and why
  • Classification of schemes and classes of members
  • The role of the independent expert
  • Break fees and exclusivity provisions
  • Warranties and performance risk
  • Treatment of Overseas shareholders
  • Dealing with options and performance rights
  • The role of directors when considering schemes including fetters or restraints on the exercise of their statutory and fiduciary duties
  • How to deal with circumstances that change during the period between the first and second court hearings
  •  Chapter 6 avoidance, ASIC position and Section 411(17) of the Corporations Act 2001 (Cth)
  • Forum consideration and differing judicial approaches
  • Opposition at court hearings and the court’s ‘approval’ discretion
• The ancillary function performed by section 413 in facilitating reconstructions and amalgamations of companies which are the subject of a scheme of arrangement
• Current issues, recent developments and reform issues.
• This subject does not address schemes of arrangement in the insolvency context.

Shareholders’ rights and remedies—and how they interact with the rights and obligations of directors, officers and the company itself—are a critical part of the law and corporate governance of Australian companies. Shareholder activism is on the rise and increasingly, the corporate regulator (ASIC), class action litigation firms and shareholders themselves are focused on what shareholders’ rights and remedies are and how they should be observed and pursued. And they are a major focus of Australia’s corporate governance principles for publicly listed companies, and therefore for those responsible for running those companies.

This subject—taught by partners from King & Wood Mallesons and Judicial Registrar Matthews—will provide participants with a detailed knowledge of the rights and remedies available to shareholders under the Corporations Act 2001 (Cth) and at common law, how they interact with the roles of directors and management of Australian companies, and what happens when things go wrong.

Principal topics include:

• An overview of the division of power between the various organs of the modern corporation
• What the current framework of corporate governance has to say about treatment of shareholders
• Shareholders’ agreements
• Shareholders’ rights including voting and access to corporate information
• Shareholder activism, including requisitioning meetings, proxy voting and removal of directors
• Shareholders’ remedies, including oppression, winding-up-related relief, statutory derivative action and class actions
• The role of ASIC
• Law reform
• Overseas comparisons.

Business and organisational crimes differ from the popular conception of ‘crime’ as involving the most unambiguously blameworthy sorts of conduct in which citizens can engage. This subject will examine how these crimes are dealt with under Australian rules on criminal responsibility, procedure, proof and punishment. It will also address, from a comparative perspective (including both Australian state systems and relevant overseas ones), the underlying legal, moral and policy concerns that distinguish fraud, dishonesty and organisational crimes (including regulatory offences by corporations) from ‘merely aggressive business behaviour’. The subject will be of interest to government lawyers, corporate counsel and litigators – anyone who is interested in the often blurry lines that distinguish criminal from non-criminal behaviour.

Note that this subject includes an advanced analysis of aspects of Australian criminal law. The classes and the take-home examination assume a prior knowledge of Australian criminal law as taught in the core curriculum of Australian law degrees

Principal topics include:

• The concept of dishonesty and the boundaries of fraud
• Corporate criminality and individual liability in an organisational setting
• Processes, proof and sentencing for business and organisational crime
• Examinations of particular offences in the context of one or more of the above topics.

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In the preparation and conduct of litigation no area of law is more important than the law of evidence. Advanced Evidence aims to provide students with an enhanced understanding of the law of evidence. This subject focuses on key provisions of the uniform evidence legislation, which now operates in all Commonwealth, Victorian, New South Wales, Tasmanian, Australian Capital Territory and Northern Territory courts, and primarily examines the law of evidence in the context of criminal proceedings, where it is is strictly applied. Students can expect to refresh, deepen and develop their understanding of the factual, legal and policy issues associated with the law of evidence and to learn to analyse the admissibility of evidence at an advanced level

This subject is primarily based on a detailed examination of those rules of evidence regarding admissibility that are of particular significance in trials, especially criminal trials.

Principal topics may include:

• Relevance
• Hearsay evidence
• Opinion evidence
• Admissions
• Tendency and coincidence evidence
• Credibility evidence
• Identification evidence
• Discretionary and mandatory exclusion of evidence.

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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.

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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.

Class actions have become an increasingly prominent feature of Australia’s litigation landscape. Some people think they enhance access to justice, offer an efficient way to deal with large numbers of claims and function as an effective regulatory tool, while others criticise them as improper ‘private’ regulation or as just another way for lawyers to become wealthy. Students will have the opportunity to critically evaluate these views. Law reform proposals will be considered, as will the development, present state and likely future directions of the law and practice of Australian class actions. While the focus will be on Australia, methods used in other countries to bring and manage group proceedings will be considered and compared. Students will have the opportunity to engage and debate with lecturers and guest lecturers with substantial academic, practice, judicial and international experience.

Principal topics include:

• The origins of modern class action regimes in Australia
• Comparisons of the federal and Victorian regimes with those in other Australian and overseas jurisdictions
• The main stages of class action litigation
• The roles of lawyers, judges, parties, litigation funders and regulators
• Specific issues, including choosing a forum, defining the class, the role of the lead plaintiff, entrepreneurial lawyering, identifying and notifying class members, settlement and court approval
• Comparing class actions with other procedures available for bringing and managing complex litigation
• Securities class actions and the regulatory role of the class action
• Funding and costs issues, including the role of commercial litigation funders.

This subject provides an outline of the UNCITRAL Model Law legislation and the LEADR & IAMA Rules and a detailed analysis of the procedures involved in the conduct of domestic commercial arbitration proceedings. It will provide lawyers involved in the conduct of such proceedings and practising arbitrators with an opportunity to develop a comprehensive understanding of all elements of the process. The subject includes consideration of the principles of procedural fairness, the law of evidence and their application to commercial arbitration proceedings. The subject will also include written exercises intended to develop skill in the process of decision-making and the writing of decisions and awards in arbitrations.

Principal topics include:

• An introduction to the UNCITRAL Model Law legislation
• A detailed analysis of procedural rules and their use in the course of proceedings
• Identification of issues, pleadings and issues statements
• Evidence, documents, statements of evidence and admissibility generally
• Expert evidence, identification of issues, adoption of rules and procedural control
• Procedural fairness and its application in practice
• Procedural efficiency and control of the process
• The process of analysis of evidence and reasoning
• Award writing.

This subject aims to teach Australian criminal procedure in depth. Successful students will understand the Australian criminal process, from investigation through charge, pre-trial, plea, appeal and ancillary phases. Students will be familiar with the key legislation and with the major cases applicable. The subject is directly relevant to criminal practice Australia-wide, and has additional relevance to practice in public law.

The subject also engages with the laws and policies which shape criminal procedure as applied in court.

• First, recent Victorian legislation impacts directly: students will study the application and effect of the Criminal Procedure Act 2008 and the Jury Directions Act 2013.
• Secondly, recent High Court authority impacts directly: students will consider the effect of Lee v The Queen [2014] HCA 20 and X7 [2013] 248 CLR 92, the ‘public law’ quality of criminal procedure, and the development of the ‘principle of legality’.
• Thirdly, international human rights norms impact: students will consider international materials (the ICCPR, selected ICTY and ICC decisions and materials, and selected cases from national courts outside Australia) and understand how these notions can apply in practice in Australia.

Principal topics include:

• Fundamental concepts: the criminal process, the principle of legality, the relevance of human rights to the process, the notion of a fair trial
• Investigation: jurisdiction, warrants and coercive orders.
• Charge and Indictment
• Pre-trial management: media, bail, victim and witnesses, asset freezing
• Disclosure of the case and the evidence
• The trial process
• Sentencing hearings
• Appeals, review and clemency.

Civil litigation is experiencing unprecedented levels of reform. Legislative changes, court decisions, changes to court rules and economic pressures are changing the way litigation is practised across the common law world. The proper roles of parties, lawyers, judges and courts are under scrutiny and discussion. The focus of this subject is current and significant issues in civil litigation, with an emphasis on new and emerging developments.

Andrew Higgins is an Associate Professor in Civil Procedure at the Faculty of Law, University of Oxford, and a Fellow in Law at Mansfield College. He is also a practising barrister specialising in mass tort litigation and General Editor of Civil Justice Quarterly.

Bernie Quinn is a Queens Counsel at the Victorian Bar who practices in a wide range of areas including commercial law, public law and product liability law. He speaks Bahasa Indonesian and was an Associate to Justice Michael Kirby. The subject will include guest lecturers drawn from the judiciary and the profession.

Principal topics include:

• Significant procedural reforms in Australia and overseas
• Law reform proposals
• The role of the judge, including case management trends
• Principles of apprehended bias
• ‘Overarching’ obligations of participants in the civil justice system
• Summary and interim relief
• Discovery
• Client legal privilege
• Expert evidence
• Procedural issues in conflict of laws
• Procedural issues in collective redress
• Costs and funding rules
• Appeal processes
• Enforcement
• Alternative dispute resolution
• Online dispute resolution and its impact on civil procedure.

Expert evidence continues to play a major role in civil litigation and criminal prosecution, as well as in administrative regulation. Moreover, the field of expertise in law has become the site of numerous contemporary controversies over judicial standards for admissibility of expertise, how to evaluate the reliability of expert testimony and the ethics of experts and attorneys who present expert testimony. This subject is primarily a detailed examination of the law and policy of the regulation of expert evidence in Australia, as well as comparative reform movements of likely significance to Australia in the future, notably developments in the United States. The materials for the subject, most of which are from court files of actual cases, will emphasise the practical uses of expert evidence inside and outside the courtroom.

Principal topics include:

• The legal framework for regulating expert evidence
• Debate and controversies about expertise
• The admissibility of expert testimony
• Restrictions on the conduct of experts
• Use of expert evidence inside and outside courtrooms.

The above topics will be illuminated through the study of specific instances of expert evidence, conduct and regulation that have prompted change and reform or controversy in Australia or other countries, especially the United States.

Conflicts with intercultural dimensions are ubiquitous in today’s legal practice. Lawyers need cultural fluency to navigate and manage diverse values and expectation, communication norms, and worldviews. Cultural fluency is the ability to communicate and problem-solve across a wide range of differences. As the roles of lawyers change and a growing accent is placed on effective negotiation, the importance of cultural fluency only increases. Experiential education will be used to explore processes, capacities, and creative tools for addressing intercultural conflict. This subject will apply theory, research and practical skills to a variety of practice contexts, integrating insights from neuroscience research.

Drawing on current interdisciplinary literature and case examples from scholarly and personal sources, students will:

• Explore intrapersonal, interpersonal and intergroup dynamics of intercultural disputes
• Learn about processes to address deep-rooted intercultural conflict
• Examine and critique cultural dimensions of conventional dispute resolution processes including in-person and online mediation
• Analyse implicit meanings and cultural values of a continuum of dispute resolution processes as applied in a variety of sectors and settings, including private and public sector organisations and communities
• Identify ways that chaos, complexity and neuroscientific theories inform conflict analysis and implications for dispute process design
• Experience and apply imaginative and creative tools for transforming cultural disputes
• Experiment with somatic, arts-based methodologies including applications and limitations in intercultural dispute intervention
• Apply cultural fluency in a range of case types and practice settings through small-group discussion and practice outside the classroom.

Successful completion of the course will expand participants’ abilities for culturally- fluent analysis, intervention and follow-up as third parties, participants or advocates in negotiation and dispute resolution processes. Participants will learn valuable skills of integrative thinking and creativity through experiential exercises and the final paper.

International dispute resolution has increased dramatically in recent years, with the emergence of complex mechanisms for resolving disputes between states and between states and other actors, including international organisations, corporations, and persons. Older mechanisms, such as the International Court of Justice (ICJ) continue to play an important role in resolving key disputes. Through analysis of classic case law and doctrine, as well as recent cases, the student will acquire advanced knowledge of non-adjudicatory procedures (eg mediation), arbitration and judicial settlement in international law. Moreover, this course will explore specialised rules for resolving injury by States to foreign nationals, including foreign investors. The lecturer for this course has appeared before international courts and tribunals on behalf of numerous governments and private actors, has served as the United States agent to the Iran-US Claims Tribunal, and is presently a professor of international law and member of the United Nations International Law Commission.

Principal topics include:

• The international obligation to settle disputes
• Non-adjudicatory procedures, such as negotiation, mediation, and conciliation
• International arbitration, including establishing the arbitral body, typical procedural rules, and salient problems
• The International Court of Justice, including its formation, contentious/advisory jurisdiction, and ancillary issues
• Other international courts and tribunals
• Remedying injury to aliens and foreign investors, including key substantive standards (national treatment, most-favoured-nation treatment) and procedural rules (continuous nationality, exhaustion of local remedies)
• Contemporary cases of significance in this field.

With a primary focus on experiential learning and interactive discussion, this subject will provide a practical guide to the use of mediation in resolving disputes and to the legal environment in which mediation takes place. The objectives of this subject are to identify where mediation sits among available dispute resolution processes; its distinguishing characteristics and advantages; the applicable legal environment; to learn to apply mediation principles and techniques in the resolution of disputes; and to explore topical issues in mediation, including different regimes applicable to the admissibility of evidence of communications within mediation.

The lecturers are lawyers who have led and been at the cutting-edge of developing mediation and other ADR techniques. They are nationally accredited mediators and also have substantial experience in teaching and training in this field.

Principal topics include:

• Identifying the characteristics of different dispute resolution methods
• The roles of facilitative and evaluative techniques in mediation
• Practising mediation techniques in mediation scenarios
• The legislative environment in which mediation takes place
• Case law and guidelines for lawyers applicable to mediation.

Mediation has become the likely forum for the resolution of most disputes – whether convened voluntarily, by contract, statute or court order – but its inherent confidentially makes it hard for outsiders to understand fully.

This subject will cover the majority of the material required for Accreditation under the National Mediator Accreditation Scheme (NMAS), but also recognise that mediation needs to be understood by all involved, not just future mediators.  In light of this, it will examine the roles of solicitors and barristers, other advisers and experts, and the parties themselves. It will do this through teaching by Andrew Moffat, who regularly mediates commercial disputes in Melbourne and Sydney, supplemented by guest lecturers who fill these roles in mediations.

It also recognises that mediation is – and must maintain – a uniquely flexible process capable of very different approaches based on the context of the dispute. Guest lecturers who are expert practitioners in other dispute contexts will share their insights.

Students will develop a sophisticated understanding of current mediation theory and practice, and learn to put this learning into practice as mediators and mediation participants, through extensive involvement in simulations. Finally, students will learn about the mediation industry and the business and career elements of developing a mediation practice.

Successful completion of this subject, and a complete attendance record to all sessions, is expected to be credited for 60 per cent of National Mediator Accreditation Scheme training, under the auspices of the Resolution Institute, which will offer students the opportunity to study the remaining 40 per cent required for NMAS accreditation.

Principal topics include:

• Mediation within the broader context of dispute resolution
• Moving from positions to interests
• Standard NMAS mediation model
• Key concepts – voluntariness and empowerment
• Triggers for mediation – optimising timing where possible
• Mediator skills and when and how to intervene
• Changing dynamics in joint sessions
• Mandatory mediation as public policy
• Typical participants and their roles
• Alternatives and options in private sessions
• NMAS Approval and Practice Standards
• Setting the scene – the opening statement
• Mediation challenges – complexity and ethical issues
• Optimising mediation in cross-cultural disputes
• Mediation as a career.

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. Public interest lawyers, in-house counsel, government lawyers, criminal lawyers, tort lawyers and commercial litigators all share the need to be effective negotiators. However few lawyers have any systematic understanding of why negotiations often fail or have suboptimal results, the dilemmas inherent in negotiations, or the characteristics of effective negotiators.

By combining theory and practice, this subject should improve students’ understanding of negotiation and effectiveness as negotiators. This 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.

Lawyers need to persuade many different audiences, including their clients, their opponents, their employers and employees, juries, the courts and others. This subject will help lawyers to persuade more effectively, through a mixture of theoretical and practical approaches. Students will read widely about advocacy, persuasion and influence, including from empirical studies and research from disciplines other than law (such as psychology). Students will also develop their practical skills in both written and oral persuasion, led by a very experienced teaching team: Noah Messing from the Yale Law School (and author of The Art of Advocacy), Justice Elizabeth Hollingworth from the Supreme Court of Victoria and experienced commercial barrister and teacher David O’Callaghan QC.

Principal topics include:

• Leading theories of persuasion, in the law and generally
• Empirical research into the persuasion of judges, other lawyers and lay people in a legal context (including juries and clients)
• Empirical research into other instances of persuasion
• Cognitive biases and how the law does—and should—react to them
• The balance between ethics and persuasiveness
• Developing a generalised theory of persuasiveness and how various actors reach various decisions
• Different ways to practically apply those theoretical approaches.

Proof in litigation is primarily designed as a subject for lawyers looking to improve their skills in analysing evidence as part of the process of preparing for adversarial litigation. The subject is taught in a hands-on workshop format and the final day is spent in the Moot Court, putting the preparation into practice.

This subject presents a systematic method for analysing and organising the factual information in a brief or file as part of a lawyer‘s preparation for trial. The method will be taught through its application to a hypothetical case file. While the focus is on trial preparation, application of the method to a matter is beneficial, whether or not the matter ultimately proceeds to trial.

Principal topics include:

• Introduction
• Preliminaries
• Chronologies
• Investigation
• Developing a case theory
• Proving the theory
• Arguing from and about evidence, including: witnesses and other sources of evidence, relevance and the drawing of inferences, negative and missing evidence, probative value and the standard of proof
• Analysing for admissibility
• Pulling it all together for trial.

Increasingly and at all levels of the judicial hierarchy, written submissions are expected of, and are becoming an important tool for, advocates. Written advocacy also plays a role in a range of other legal documents, such as advices, affidavits and statements of facts. This subject aims to critically evaluate the use of written advocacy (principally in litigation) and to develop advanced skills in the preparation of legal documents. There will be a particular focus on written submissions, including written submissions at first instance and on appeal, and including both the factual and legal aspects of submission writing. This subject will focus on effective written advocacy by examining techniques used in Australia and, by way of comparison, techniques used in appellate courts in the United States and the United Kingdom. The subject will involve guest speakers from the judiciary and the Victorian Bar to provide practical perspectives on written advocacy.

Principal topics will include:

• Written advocacy:
  • History and role of written submissions in Australian courts
  • Comparison with oral advocacy
  • Comparison between Australia and the United States and the United Kingdom
  • Submissions at first instance and at appellate level
  • High Court submissions
• The writing, organisation and structure of well-written submissions, with a focus on the various aspects of the submissions, including:
  • Themes
  • Issues
  • Structure
  • Facts
  • Legal Argument
  • Style.

This subject investigates the legal regulation of workplace bargaining in Australia. With the requirement that bargaining be conducted in ‘good faith’ under the Fair Work Act 2009 (Cth), this has become one of the most contested areas of federal labour regulation. The subject is informed by the historical, political and economic factors that have shaped the development of the law, as well as relevant international legal principles. While the focus of the subject is on the system regulating workplace bargaining under the Fair Work Act, other relevant areas of law are analysed, including the common law regulation of strikes and industrial action and the contract of employment. The special regulation of bargaining and industrial action in the building and construction industry is also examined.

Principal topics include:

• The historical development of the law relating to workplace bargaining
• Relevant international legal principles and Australia’s obligations in this respect
• Common law regulation of strikes and industrial action
• The system regulating workplace bargaining under the Fair Work Act 2009 (Cth), including the conduct of bargaining and the taking of protected industrial action, and the role of trade unions
• The form, function and content of registered workplace agreements
• The relationship of workplace agreements to other means of regulating working conditions, including the contract of employment
• The ‘general protections’ under the Fair Work Act for freedom of association and the exercise of ‘workplace rights’ in relation to bargaining
• Special regulation of bargaining and industrial action in the building and construction industry.

The Australian superannuation system has become a world-wide model for occupational pension plans for other countries to emulate, especially as many countries face increasingly-ageing populations and the need to develop effective retirement-saving systems. The Australian system’s mandatory, defined contribution plan model, coupled with its use of stand-alone pension funds, provides an innovative system for guaranteeing retirement security for its citizens. After studying the Australian superannuation system, a number of other country workplace pension models will be explored, such as the United States, Canada, the United Kingdom, France, Germany, the Netherlands, and Japan. The subject will not only seek to determine the benefits and disadvantages of the various workplace pension systems, but also ask what role occupational pensions should play in the larger provision of retirement to the elderly, and what should happen to employee occupational pension claims where the employer becomes insolvent.

Principal topics include:

• The Australian superannuation system, including the history of its development, its current form, and prospects for future modification
• Other forms of occupational pension schemes throughout the industrial world, with emphasis on the systems utilised by the United States, Canada, the United Kingdom, France, Germany, the Netherlands and Japan
• Discussion of the major policy issues surrounding the development of workplace pensions, including the ageing of the population, the recent financial difficulties faced by many governments, the choice between defined benefit pension plans and defined contribution pension plans, and the choice between governmental pension plans and occupational pension plans
• Exploration of the insolvency system in Australia and in other countries to examine how pension claims are treated during an employer’s insolvency.

Complaints of bullying, harassment, discrimination and other interpersonal grievances have become commonplace. Employers’ disciplinary decisions in relation to misconduct are also subject to increased scrutiny by courts and tribunals. A fair and thorough workplace investigation provides the foundation for taking, and if necessary defending, disciplinary and other action by an employer in response to any workplace issue. This subject explores the current legal framework applying to workplace investigations in Australia and proposes a structure for conducting investigations to minimise risk.

The lecturer in this subject has over two decades of experience conducting independent workplace investigations, coaching and advising clients on managing in-house investigations and appearing as an advocate in contested matters.

This subject analyses the current law in Australia governing the investigation of complaints and conduct concerns in the workplace. It also explores various structures for undertaking effective and fair workplace investigations in this rapidly developing area of practice.

Principal topics include:

• Analysing the legal framework (federal and state) impacting upon workplace investigations in Australia
• Understanding what a workplace investigation is, and distinguishing investigations from other workplace processes
• The basic structure of an investigation
• Identifying the relevant scope of an investigation
• Establishing the appropriate foundation for conducting an investigation, including considerations in the selection of the investigator and work arrangements during the investigation
• Addressing other threshold issues prior to commencing an investigation, including appropriate roles of stakeholders
• Gathering information relevant to the scope of the investigation from people and from documents/things
• An examination of relevant principles of procedural fairness/natural justice – the bias rule and the hearing rule
• Making findings – evaluating the information gathered; applying the relevant legal tests, burden of proof and standard of proof and assessing credibility
• Applying the findings of an investigation in a disciplinary context, the role of the decision maker and implementing and communicating outcomes
• Learnings from overseas jurisdictions and potential for future developments in the field.

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.

Discrimination and sexual harassment in the workplace represent an overwhelming majority of total complaints made to anti-discrimination authorities. Equality and discrimination at work remain pressing concerns for employees, managers and, more broadly, for society. Achieving equality is elusive and, indeed, the very meaning of equality is highly contested.

This subject explores the legal meanings of equality, with a focus on the frameworks through which Australian parliaments have sought to address inequality, discrimination and harassment. It examines federal and state laws that deal with discrimination, including the four federal laws, the Equal Opportunity Act 2010 (Vic) and the adverse action provisions in the Fair Work Act 2009 (Cth). Consideration is given to discrimination based on race, sex, disability, and pregnancy and family responsibilities. The lecturers in this subject combine many years of academic scholarship in this area, engagement in law reform debates and practical client-focused legal advice

This subject provides an examination of the development and current scope of Australian equality and discrimination law, as relevant in employment and work relationships. It will focus on federal and Victorian jurisdictions.

Principal topics include:

• A study of the framework and key features of federal and state legislative provisions dealing with equality and discrimination in the employment context, including theEqual Opportunity Act 2010 (Vic), the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and theAge Discrimination Act 2004 (Cth)
• An examination of the general protection provisions in the Fair Work Act 2009 (Cth), including redress for certain types of adverse action
• Debates regarding the meaning of equality, discrimination and other contested concepts such as choice, especially as choice relates to carer responsibilities
• The Charter of Human Rights and Responsibilities Act 2006 (Vic), and its potential impact in the interpretation of the Victorian Equal Opportunity Act
• Conciliation, dispute resolution and remedies
• Alternative regulatory regimes, including the National Employment Standards, equal remuneration provisions under the Fair Work Act, contract law and occupational health and safety issues such as bullying
• Current processes of legislative revision at federal and state level
• The potential for future developments in the field.

Human rights law is a subject of growing importance with wide implications, for governments and business. This subject considers how human rights law can be used to regulate private power (the power of the employer) and a private law relationship (the contract of employment) in an era of globalisation and transnational corporations. It examines, in particular, the question whether labour rights can be regarded as human rights, and considers the main international instruments designed to regulate the workplace.

The main focus will be the four core principles of the International Labour Organisation, concerned with the right to freedom of association, protection from discrimination, the elimination of forced labour, and combating child labour. Consideration will be given to how these and related obligations can be enforced against governments, but also against corporations. Different instruments of corporate accountability are fully explored, and attention is paid to how business can keep on the right side of human rights standards, and the risks of failing to do so, with reference to the law and practice of Australia and other common law jurisdictions.

What is the relevance of human rights at work for governments and corporations in Australia, whether doing business here or overseas? What are the ‘risks’ of human rights at work, legal or otherwise? Conversely, how can trade unions mobilise around human rights at work to advance the interests of their members?

Principal topics include:

• The nature of protection of labour rights in international and domestic law
• The scope and relevance of international labour standards for domestic law
• The role of hard and soft law mechanisms and the collapse of the hard/soft law distinction
• The application of human rights principles to private law relationships in selected areas.

As labour and capital markets transcend domestic borders, the objectives of labour law can no longer be confined solely to actions within the nation state. The purpose of this subject is two-fold. First, to identify the diverse components of international employment and labour law, the institutions, the claims and the methods for advancing social protection to workers worldwide. This enquiry spans beyond traditional instruments that are associated with labour law, and includes trade law and corporate social responsibility. It further seeks to embed the study of legal instruments in the broader economic and sociological debates on globalisation. The second goal is to critically assess how international developments affect domestic labour law with a particular focus on the European Union, the United States, China and India.

Principal topics include:

• The importance of the concept of globalisation in understanding national systems of labour regulation
• The composition, powers and functioning of international organisations that regulate labour internationally, including the International Labour Organization (ILO) and the European Union (EU)
• The relevance of different theories of international regulation
• The usefulness of a comparative approach to labour law, including consideration of the major models of labour regulation like the Wagner Model in the United States and Canada
• The role of intergovernmental and corporate codes of conduct in securing international labour standards
• The emerging challenges posed by the use of migrant, contingent and precarious workers in the global economy
• The success of adopting a human rights approach to labour regulation in the face of changes to domestic and international labour law frameworks.

Equality and discrimination law is continuing to increase in importance, but remains controversial. This subject examines international and comparative aspects of equality and discrimination law. The subject is not confined to, but will include a focus on labour and employment issues. Equality and discrimination issues will be examined at four levels: international law, transnational, state constitutional law, and state human rights law. A review of the content and operation of the major United Nations (UN) and International Labour Organization (ILO) conventions relevant to discrimination generally and to equality at work is directly relevant to Australian domestic law as these treaties provide a constitutional basis as well as content for much Australian anti-discrimination legislation. For comparison, an overview of the European Union (EU) system for regulating discrimination law will be included. The focus then shifts to comparative national law, with an examination of protection of equality and discrimination rights at constitutional and legislative levels in Australia and other countries that take different approaches: some or all of Canada, New Zealand, South Africa, the United Kingdom and the United States.

This subject provides a critical examination of the scope and operation of equality and discrimination law at international, transnational and national levels and utilises comparative doctrinal and policy analysis. While the major focus will be on work and employment, other areas will be considered where they cast light on the development of the law.

Principal topics include:

• An introduction to the different roles played by equality and discrimination at different locations and levels of the legal system
• Consideration of debates about the meaning of equality, discrimination and other contested concepts such as choice and responsibility
• Analysis of the roles, framework and key features of international treaties and conventions relating to equality and discrimination in both general (human rights) and specific (ILO) contexts
• Analysis of some of the key EU equality directives and their adoption in some Member States
• An analysis of constitutional protection of equality rights in countries with different modes of protection, chosen from Canada, New Zealand, South Africa, the United Kingdom and the United States
• An examination of anti-discrimination and equality laws across several countries to contrast different approaches and conceptualisations of these rights, and also different social environments and barriers to achieving a more equal society
• Consideration of the role(s) of law in relation to equality and discrimination, and the uneven progress in the countries analysed
• Exploration of possible future directions for better protection of equality and discrimination rights.

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.

This subject covers federal statutory regulation of minimum employment conditions in Australia. It addresses the relevant provisions of the key federal statute, the Fair Work Act 2009 (Cth).

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, and regulation of work/life balance.

Paid work is central to the lives of most adults. It not only provides an income but also is constitutive of their identities. For society at large, the organisation of paid work relationships is crucial because of the need to produce goods and services and to protect those engaged in production. Regulation of these work relationships by law is, therefore, important.

This subject provides a thematic overview of the legal regulation of work relationships in Australia in an industrial, social and political context. It examines how work relationships are regulated through statutory regimes as well as through contract law. A major focus of the subject is the Fair Work Act 2009 (Cth), which sets minimum employment conditions, regulates modern awards and workplace agreement-making, provides redress in relation to adverse action and also provides processes to deal with issues of bullying at work. Anti-discrimination law will also be examined.

This subject is designed to be of particular assistance to students without previous (or recent) legal study in this area. Principles of Employment Law is compulsory for students who do not have a law degree from a common law jurisdiction, and it is strongly recommended that this subject be taken before any other employment and labour relations law subjects. Principles of Employment Law is also recommended for students who have not studied an equivalent subject in their law degree, or who have not done so recently. Principles of Employment Law is ideal for students undertaking a masters in another specialisation, or a Master of Laws, who wish to study one subject in the field of employment and labour relations law.

Principal topics include:

• The constitutional framework for Australian employment law
• Statutory standards under the Fair Work Act 2009 (Cth) including unfair dismissal, minimum wage rates, hours of work, leave, adverse action and right to request regimes
• The regulation of employment rights and working conditions by modern awards and enterprise agreements under the Fair Work Act 2009 (Cth)
• Various aspects of the common law contract of employment
• Anti-discrimination and equal opportunity law.

In 2010 all Australian governments publicly committed to implementing nationally uniform laws about workplace health and safety. This development is bringing to fruition a process that began 30 years ago. However, Victoria is one of two states that have not implemented the agreed national laws. Therefore this subject examines in detail the content of Victorian law, as well as the new national laws.

By referring to the existing state, territory and commonwealth body of law, this subject considers the operation of Victorian workplace health and safety law in its historical and industrial setting as well as the likely practical operation of the new regulatory regime. The lecturer is a barrister with extensive practical experience in running cases under workplace health and safety laws.

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 workplace health and safety statutes
• State enforcement of the workplace health and safety legislation
• Workers’ rights under the Australian workplace health and safety statutes
• The anti-bullying jurisdiction of the Fair Work Commission
• Workers’ compensation schemes in Australia
• The rehabilitation of injured workers
• The role and impact of the common law duty to provide a safe workplace.

This subject examines the legal framework governing natural resources and renewable energy in China, with particular focus on mineral deposits, living organisms, and climate resources (i.e., wind, sunlight and atmospheric moisture). The objective is to provide students with a practical understanding of this important area of economic regulation, and an appreciation of the broader normative considerations (i.e., efficiency and redistribution) that are applicable to similar issues elsewhere. This subject draws from the lecturer’s extensive academic scholarship on resources law, regulatory theory, and Chinese legal system.

Principal topics include:

• The normative theoretical framework for assessing resources law, in particular the controversies and ambiguities surrounding the conceptions of economic efficiency and redistributive fairness 
• The constitutional framework in China governing natural resources, in particular provisions on property rights, ownership/allocation of natural resources, and environment protection.
• The core legislation/regulation governing natural resources and renewable energy in China with emphasis on provisions governing allocation, extraction/exploitation, and transfer
• The social, economic and political factors shaping the respective approaches towards natural resources management
• The strengths and weakness of the regulatory regime and general implications for natural resources management

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.

This subject explores the legal and regulatory structures affecting foreign investors seeking to participate in the development of energy resources in so-called ‘emerging markets’, and in particular in the restructuring of formerly socialist economies. Russia will be used as an example of an emerging market presenting particular characteristics and problems that provide important insights into emerging markets elsewhere in the world.

The subject coordinator has conducted research on ‘emerging markets’ over many years, and has extensive practical experience as an adviser in these matters. His work is widely published in numerous books and journal articles.

Principal topics include:

• Corruption and money laundering
• Liability for human rights abuses
• Forms of foreign investment and commercial transactions
• Local accreditation
• Taxation
• The privatisation process
• Intellectual property protection
• Import-export regulations
• Currency controls
• Project and conventional financing
• Banking
• Development and regulation of capital markets
• Securities and commodities exchanges
• Financing
• Environmental protection.

There will be daily simulated negotiation exercises.

The mining industry is international in character and many mining and exploration companies operate in multiple foreign jurisdictions. This subject examines the legal, fiscal and regulatory regimes that govern mineral exploration and production internationally, with a particular emphasis on exploration and mining in developing countries. It deals with the negotiation of mining development agreements with host governments, regulatory schemes and fiscal regimes, community agreements, principles of sustainability and international norms affecting the mining sector. The lecturer has extensive practical experience in mineral ventures in a number of different jurisdictions.

Principal topics include:

• Mining development agreements
• Mineral ownership
• Legal structures
• Exploration regimes
• Fiscal regimes
• Foreign investment controls
• Marketing and financing issues
• Communities and indigenous peoples
• Land access issues
• Sustainable development principles
• International frameworks and norms applicable to mining.

This subject considers the legal issues and structure of transactions relating to the exploration, production and marketing of petroleum that, owing to its economic and strategic importance, is the most important commodity traded worldwide. This subject will give students a detailed understanding of how crude oil and gas are exploited and marketed worldwide. It will cover how countries establish sovereignty over petroleum resources and how host governments or their national (state-owned) oil companies contract with private companies to explore and develop oil and gas resources. This subject also reviews and analyses key contracts among petroleum companies, and contracts between petroleum companies and petroleum-services contractors, that facilitate exploration, development and marketing of petroleum. As petroleum is one of the most politically charged commodities, this subject will also consider extra-territorial anti-corruption law and political risk. In a broader sense, this subject will help students develop better analytical skills—especially the ability to critically evaluate contracts.

Principal topics include:

• Host government contracts
• Joint bidding, confidentiality, exploration and farmout agreements
• Joint operating and unitisation agreements
• Managing and contracting to avoid corruption problems
• Managing and allocating risk in service contracts.

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.

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).

Mineral and petroleum resources play a significant part in the Australian economy. 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 includes several fiscal components: State and Territory royalties and stamp duties; Commonwealth income tax, GST, customs and excise, and ‘carbon taxes’; and ‘special’ Commonwealth levies, such as the Petroleum Resource Rent Tax and the Minerals Resource Rent Tax. Australia’s federal system of government adds an important dimension to that relationship.

This subject examines all aspects of these fiscal measures relating to mineral and petroleum resources. The subject is not limited to tax specialists. It is designed for private and public sector lawyers and advisers with tax or non-tax backgrounds, seeking a practical overview of the legal and taxation implications of mining and petroleum operations and transactions, as well as an understanding of the framework of mining and petroleum laws that underpin the relevant tax regimes.

Principal topics include:

• Property in minerals and petroleum
• Constitutional authority over exploration for, and production of, minerals and petroleum
• Statutory regimes governing exploration for, and production of, minerals and petroleum
• Tenement transfers and sub-leases, farmouts, joint ventures and overriding royalties
• State and Territory royalties
• Corporate income taxation of exploration for, and production of, minerals and petroleum
• Petroleum Resource Rent Tax
• Selected GST issues
• Selected stamp duty issues.

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 lecturers are leading practitioners in this area and they 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.

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.

Conservation biologists warn that we are in the midst of a great extinction crisis. Biodiversity Law is an emerging field, examining legal regimes designed to conserve Earth’s endangered forms of life. We will voyage to foreign intellectual lands – e.g. environmental ethics, conservation biology – and take a few real voyages to see biodiversity law in action. We will examine the nuts and bolts of Australian and foreign legal regimes with an attempt to discern most effective legal practices to conserve biodiversity, grounding our analyses in in-depth case studies.  Our investigations will be framed by two overarching questions: What is the legal framework for preserving life on Earth? What should be the components of the legal framework for preserving life on Earth?

Principal topics will include:

• A short primer on principles of environmental ethics and conservation biology and how these principles inform the practice of Biodiversity Law;
• Understanding the threats to biodiversity the law must confront;
• In-depth study of Australia’s Environment Protection and Biodiversity Conservation Act (EPBC) to understand how this law interacts with Australian State and Territorial law to protect biodiversity;
• Consideration of Australian court cases that have interpreted the EPBC’s (and other biodiversity protective legal) provisions as applied to threatened species and ecosystems;
• Comparative studies of United States, South Africa, and other national legal approaches to, and court decisions on, biodiversity conservation;
• Attention to Australian (and foreign) biodiversity facing particular challenges (Great Barrier Reef, isolated marsupial populations, cetaceans) and how the law is (or is not) meeting those challenges;
• Analysis of the Convention on Biological Diversity,and other international treaties including how they are implemented in domestic law;
• In-depth case study on global wildlife poaching and smuggling;
• Discussion of “ownership” of biodiversity, including the rights that indigenous populations have to biodiversity;
• Discussion of market mechanisms designed to incentivize biodiversity conservation;
• Examination of non-legal means to preserve biodiversity;
• Synthesis of best practices for how to preserve and steward life on Earth.

Climate change is a pressing environmental, economic and social problem. Global warming is predicted to have wide-ranging impacts, and it presents enormous challenges for conventional models of law and socio-economic governance due to its pervasive character, long-term effects and the need for dynamic change in many of the fundamental areas of life. This subject examines the challenges for law in driving that change, from the United Nations Framework Convention on Climate Change (UNFCCC) and its associated Paris Agreement, to international trade and litigation, to federal and state legislative responses, through to local effects including on Indigenous peoples. The lecturer is active in research and advice in climate change law and governance in the international and domestic law spheres.

Principal topics include:

• The scientific basis for global warming and physical impacts of climate change
• The international legal framework, including the UNFCCC, Kyoto Protocol, Paris Agreement and associated international instruments
• Social and cultural impacts and legal responses, such as human rights protection
• The schemes for reducing emissions from deforestation and forest degradation (REDD).
• The role of the World Trade Organization (WTO) in climate change governance, particularly with respect to renewable energy technologies and the disciplining of fossil fuel subsidies
• The interaction of climate change regimes with other international law frameworks; eg World Heritage, refugee law and security
• The federal legislative framework for climate change mitigation and adaptation, including direct action plans, market mechanisms and carbon trading
• State-based legislative and regulatory responses to climate change
• Climate change regulation and its impact on corporate entities
• Bio-sequestration and carbon capture and storage
• The nature of climate change litigation

The frequency and severity of ‘natural’ disasters, like flood, cyclone and bushfire, 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, natural resources and biodiversity. This subject covers the multi-scalar legal response to disasters involving international treaties and soft-law instruments, national and regional regulation, and private law (torts and contract), and 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 natural disasters and relevant adaptation planning, emergency 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 natural hazards, and impacts on human settlements
• 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 (eg 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 covering: coastal hazards: NSW coastal management and land-use planning regimes; bushfire: Victorian land-use planning, emergency management and recovery, and relevant compensation law for the 2009 bushfires and fires in open cut coal mines in the La Trobe valley in 2015; Flood: statutory planning and insurance regimes in Queensland, and the response to the 2011 floods; Drought: emergency water allocation management in urban and rural areas in south-eastern Australia
• Comparative case studies in developed and developing countries, evaluating the transferability of legal principles (eg responses to drought and water scarcity in the western United States and southern Africa; coastal adaptation planning instruments in the US and United Kingdom; and typhoon readiness in South East Asia).

Environmental protection is one of the central policy issues in the world today. Approaches to protecting the environment vary widely, as do perspectives about the efficacy of such approaches. This subject provides an advanced inquiry into environmental regulation with a special focus on compliance issues. The subject includes review of critical strategies that are in use throughout the world to promote environmental protection, including market-based approaches, regulatory approaches, common law approaches and information-based approaches. The subject also reviews key legal and policy issues that relate to promoting compliance with environmental requirements including, for example, different theories for promoting compliance (deterrence-based, cooperation-based, hybrid approaches, etc). In addition, the subject explores important authorities for government and citizen enforcement, including litigation and the types of authorities that enhance government and citizens’ capacity to enforce effectively. As well, the subject assesses the role of international institutions in promoting effective enforcement.

The lecturer in this subject has received multiple honors for his academic scholarship. In addition, he has extensive practical experience in international governance as well as service as a federal and state official. The lecturer served as Director of the NAFTA Commission’s Citizen Petitions Process, and as an enforcement official in the United States with the US Department of Justice, US Environmental Protection Agency and New York State Department of Environmental Conservation.

This subject provides a critical assessment of contemporary approaches to environmental regulation, with a specific focus on environmental compliance.

Principal topics include:

• Review of strategies available to promote environmental protection
• Examination of theoretical approaches to promoting environmental compliance
• Assessment of important legal authorities for effective environmental compliance, including consideration of citizens’ enforcement
• Review of the possible role that international institutions may play in improving domestic environmental compliance.

Environmental law deals with some of the most vital but also highly controversial issues within Australia and the global society. Environmental issues are a prominent feature of public debate, scientific research and regulatory action and this subject canvasses how law has evolved in response to such challenges, as well as identifying where reform may be required. The subject equips students with a strong grounding in the foundational principles of environmental law in Australia by reference to the Commonwealth Environment Protection and Biodiversity Act 1999, as well as relevant pollution control and biodiversity legislation. In addition, it provides an introduction to international environmental law dealing with questions such as trans-boundary harm and World Heritage protection, as well as considering how international influences have shaped the direction of Australian environmental law.

This subject will provide an examination of the development and current scope of Australian environmental law, with a focus on the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) and related state environmental protection legislation.

Principal topics include:

• The growing importance of international law, with the recognition that environmental protection issues cross regulatory boundaries
• Greater integration between relevant discipline areas concerned with environmental protection
• Greater diversity in environmental law approaches, including integration with other regulatory areas such as planning, natural resource management, water use and indigenous land management, and financial measures and economic instruments.

These themes will be illustrated by case studies in the following areas:

• Environmental law: The drivers of change
• Environmental actors, including public interest litigation
• The range of legal and regulatory tools deployed in environmental law, including consideration of market mechanisms
• The interaction of law and science, with a focus on the precautionary principle
• Integration and complexity challenges in implementing environmental law with a focus on biodiversity protection
• International law trends, including trade and environment and climate change governance.

With policy and law-makers under pressure to subordinate environmental concerns to short-term economic imperatives, environmental advocates are increasingly looking to human rights as a means of reinforcing the importance of environmental protection to human welfare. Domestic, regional and international human rights laws present a range of opportunities and challenges for addressing harms done to the environment.  There are also a number of conceptual concerns with framing environmental issues in terms of human rights.  Students will work as a class and in small groups to understand the relationship between human rights law and environmental protection at domestic, regional and international levels. The subject will provide insight into strategic aspects of human rights advocacy for the environment, using case studies to explore the roles of state and non-state actors in environmental protection and to consider a range of approaches in the different regions of the world.  Resources drawing from academic, policy and advocacy material will be used to interrogate practical and critical perspectives on human rights law and environmental protection.

Principal topics include:

• The relationship between human rights and the environment in theory and practice
• Human rights that protect the environment, including general rights such as the rights to privacy, health and to information as well as specific rights ‘to’ and ‘of’ the environment
• Domestic, regional and international governance of human rights in relation to the environment
• Sustainable development and its relevance to issues of human rights and the environment in the different regions of the world
• The implications of human rights law for indigenous peoples and environmental protection
• The roles and responsibilities of non-state actors in relation to ‘environmental rights’, including environmental advocates and businesses
• Channels for redress beyond formal legal mechanisms for people and for ‘nature’.

This subject focuses on Indigenous peoples’ land and resource rights both in and beyond Australia. Current issues in this dynamic area of law will form the basis of the subject but will include comparative material, particularly but not limited to other common law jurisdictions, consideration of international instruments such as the Declaration on the Rights of Indigenous Peoples, conceptual material on property rights and reforms to indigenous land title in Australia and Canada. Native title law and practice will provide the context of much of the Australian material and will occupy a significant part of the subject. Particular attention will be given to three aspects of the native title process: the operation of the Native Title Act 1993 (Cth), the effect of recent jurisprudence on the enjoyment of native title rights and recent developments in the negotiation and implementation of agreements, whether as native title or non-native title outcomes.

This subject has a strong emphasis on comparative legal regimes for granting and managing indigenous land title and resources. Topics and case studies will be chosen from various jurisdictions.

Principal topics will include:

• Traditional indigenous cultural relationships, landholding systems and settler land titling systems
• Indigenous land claims, land access and agreement making in Australia and other jurisdictions
• A detailed examination of the structure, content and operation of legislative regimes, including the Native Title Act 1993 (Cth)
• State and territory land rights and cultural heritage legislation
• Mediation, negotiation and litigation processes and the institutional relationships in native title cases in Australia and other jurisdictions
• Recent court decisions in Australia and other jurisdictions
• Forms of conflict resolution over resource use, e.g. the Resource Management Act 1991 (NZ) and the Native Title Act 1993 (Cth)
• The Declaration on the Rights of Indigenous Peoples
• Case studies from Australia and elsewhere (e.g. indigenous land title and climate change, indigenous title to water and the review of the Foreshore and Seabed Act 2004 (NZ), customary land titles and individual title).

International environmental law is the field of public international law concerned with the protection of the natural environment, and those aspects of the built environment recognised as world cultural heritage. It is a vitally important branch of international law, seeking as it does to safeguard the environment on which humanity depends for its very existence. International environmental law seeks to integrate the activities of diverse actors—states, international organisations, businesses, communities and non-government organisations (NGOs) and uses a wide range of legal tools (including economic instruments and participatory mechanisms) to address pressing environmental concerns. This subject explores the critical governance and regulatory dimensions of international environmental law, as well as introducing you to cases and treaties that have been pivotal to the development of this area of international law. The lecturers in the subject are international environmental law experts, with both academic and practical experience in the field, which will be drawn into the delivery of a stimulating and relevant subject.

Principal topics include:

• The need for international environmental law and its historical development
• Fundamental principles and concepts necessary for an understanding of international environmental law, eg sustainable development, precautionary principle and 'polluter pays' principle
• The principal institutions and actors involved in the creation, implementation and enforcement of international environmental law
• The principal cases and treaties that have been influential in the development of international environmental law
• Current issues of concern in international environmental law, including atmospheric pollution and climate change, the protection of the oceans, species protection and biodiversity, and international trade.

The High Court’s 1993 Mabo decision and the Native Title Act 1993 (Cth) enable Aboriginal peoples and Torres Strait Islanders to seek the recognition in Australian law of rights arising under their traditional laws and customs in respect of land or waters, as native title. Native title groups may also seek compensation in certain cases for acts that have extinguished or otherwise affected their native title.

A determination of native title by the Federal Court requires proof of matters including the content of the relevant traditional laws and customs, the nature of the rights and interests, and the connection of the native title claim group with the land or waters by those laws and customs. Other matters to be addressed at trial include whether particular rights and interests are capable of being recognised by the common law, and whether valid laws or executive acts of the state or Commonwealth have extinguished native title such that it may not be recognised. Establishing native title also raises issues that are both theoretical and practical, such as the nature of ‘law’ and ‘tradition’, and the interaction between two systems of law.

Once native title is recognised, or a claim is registered, native title holders must engage with other elements of Australian law including state land management and resource extraction regimes, negotiate with other land users including mining companies, make and implement agreements, and manage the proceeds of those agreements using contemporary legal tools such as companies and trusts. Native title holders must manage their recognised native title rights and interests through a corporation that holds the native title on trust for them or manages it as their agent.

The lecturer has many years of academic scholarship in this area, engagement in law reform debates and providing practical, client-focused legal advice.

Principal topics include:

• Aboriginal and Western relationships with land: two systems of law
• Recognition of native title: the Mabo decision and the Native Title Act
• Proof of native title
• Native title practice: role and obligations of a lawyer for a native title group
• Decision-making by native title groups
• Extinguishment of native title
• Dealings with native title: future acts and agreements
• Alternative approaches to land justice in Australia
• Managing native title: commercial native title rights, tax, native title corporations, native title and land management, etc.
• Compensation for invalid acts affecting native title
• International and comparative approaches.

This subject provides an in-depth examination of negotiated instruments as a means of addressing international environmental problems. It focuses on legally binding agreements between states - that is, treaties - but also explores other types of negotiated instruments such as declarations and codes of conduct, which may be non-binding or involve non-state actors. The subject analyses issues of treaty negotiation and design by comparing the development of different environmental agreements, including the Montreal Ozone Protocol, the Paris Climate Agreement, the Basel Convention on Transboundary Movement of Hazardous Wastes, the International Convention for the Prevention of Pollution from Ships (MARPOL), and the World Heritage Convention. At the end of the subject, students will apply what they have learned in a mock negotiation.

This subject will focus on the functions of international environmental agreements, how they are negotiated and designed, and how they develop and evolve over time. Subject materials will include case studies of particular environmental negotiations and international relations explanations of environmental negotiations, including treaty design choices.

Principal topics include:

• Why do states negotiate environmental agreements? (costs and benefits, normative factors, domestic politics)
• Categorising agreements: legal/non-legal, constitutive/regulatory, global/regional
• Pre-negotiations: determining the negotiating forum and mandate
• Negotiating process: actors (coalitions/groups, chairperson, secretariat, NGOs), decision-making rules, organisation (inter-sessional meetings, open and closed sessions, means of resolving 'crunch' issues), adoption
• Treaty design: legal form; architecture; breadth; depth, types, and differentiation of obligations; institutions; mechanisms to promote participation, compliance, and flexibility; entry-into-force requirements
• Drafting techniques and, ways of resolving differences
• Treaty development: protocols, amendment, decisions of parties, interpretation
• International relations explanations.

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 continually 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).

From corporate self-regulation to multi-stakeholder certification, transnational private regulation is exploding. Multinational firms and powerful governments often succeed in exploiting the resulting overlaps and intersections amongst actors and institutions to bypass unattractive forums, shift decision-making to preferred arenas, shape outcomes in their favour and impose their desired rules on others. Marginalized equity-seeking actors such as workers, indigenous peoples, subsistence producers and industry-affected communities sometimes resist these efforts successfully. Rarely, they even exploit these overlaps and intersections to advance their own interests. Using real-world examples and cutting-edge interdisciplinary theory, the subject examines how powerful actors exploit transnational governance interactions in their favour and how these interactive dynamics can instead be harnessed to improve regulatory capacities, raise standards and empower weaker actors. The teacher heads the interdisciplinary Transnational Business Governance Interactions research network and is a leading scholar and practitioner of transnational private regulation.

Principal questions and topics to be addressed will include:

• What is transnational private regulation? Definition, actors, institutions, processes, history, trends, examples and relation to domestic and international law
• What are transnational governance interactions? Drivers, mechanisms, pathways, forms, impacts and spatio-temporal dynamics
• How do powerful actors exploit transnational governance interactions to advance their interests and sometimes to frustrate transnational regulation?
• When and how can transnational governance interactions be harnessed to enhance regulatory capacities, raise social and environmental standards, or empower weaker actors?
• What legal and other theories and methodologies might help to explain, predict and evaluate these interactive dynamics?
• What happened in selected cases of transnational governance interactions drawn from various sectors and issue areas including:
  • Agri-food
  • Biofuels
  • Climate Change
  • Derivatives Trading
  • Financial Technology
  • Fisheries
  • Food safety
  • Forestry
  • Indigenous Peoples’ Rights
  • Labour Standards
  • Oil and Gas
  • Social Responsibility Standards
  • Sports Mega-Events
  • Supply Chain Management
• What can be learned from these case studies? Implications for legal theory, practice, ethics and professionalism in a globalizing world.

Outer space, high seas, the deep seabed and Antarctica are areas governed by international law using the same set of legal principles centred around international management, non-appropriation, equitable use and peaceful purposes. The importance of these international areas and their resources has increased exponentially over the past 30 years due to globalisation and the need for these resources. New technologies, increasing demands for new resources, climate change and exotic tourism, driven by a tripling of the global economy over the next 30 years, mean that their importance will again increase dramatically. Management of these areas and their valuable resources is a rapidly developing area of international law that will affect many different areas of commerce and the law. This subject provides a unique opportunity to learn from two international lawyers with practical experience in the field.

Principal topics include:

• What are international areas, what is their importance and what are future trends in their use?
• The historical development of regulations governing the use of international areas and their resources, such as fishing, oil and gas extraction, pollution and access to orbits
• Law governing major international areas and their natural resources, including:
  • high seas
  • deep seabed
  • Antarctica
  • atmosphere
  • outer space
• Current issues and developments, in particular:
  • management of resources in the deep seabed, continental shelves, polar regions and celestial bodies
  • the right to protest at sea in connection with the use of natural resources
  • equitable access to outer space orbits, especially geostationary orbits
  • challenges of tourism in the deep sea, outer space and Antarctica
  • environmental impacts of human activities (polar melting; space debris; ocean fertilisation; marine pollution and dumping)
  • new and emerging uses of these areas (eg geo-engineering and the use of plant genetic resources for food and agriculture).

This subject provides an examination of current environmental tort, waste management and contaminated land laws – from Victoria, Australia and beyond – critiqued against the concepts of responsibility and justice, and contextualised through case study examples and practitioner perspectives.

It will ask: What are the risks and advantages of relying on each law to regulate waste, pollution and contamination? The subject will present Victoria as a case study for these laws, while also offering comparative insights, analysing developments in the law of torts, waste and contamination from Australia, overseas and internationally. It will also draw on recent controversies and experiences of practitioners to learn about the law in action.

Principal topics include:

• Toxic torts
  • An introduction to the notion of a ‘toxic tort’
  • The origins of the toxic tort discourse
  • Perspectives from the United States
  • Toxic tort actions and environmental justice
• Environmental harm, trespass, nuisance and negligence
  • Offences of creating environmental harm and causing or permitting pollution with a focus on the Environment Protection Act 1970 (Vic)
  • Recent developments in the environmental torts landscape, particularly within the Wrongs Act 1958 (Vic)
  • Environmental torts and notions of tortious responsibility
  • A comparative analysis of environmental torts
  • Australian torts case studies and practitioner perspectives
• Waste management laws
  • An international law framework for waste management
  • An overview of waste management laws – from the global to the local
  • A case study-based critique of international, national, state and local laws and policy
• Contaminated land
  • An examination of Victoria’s contaminated land laws under the Environment Protection Act 1970 (Vic)
  • A comparison with Australian and overseas jurisdictions
  • Discussion of the 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 under the Environment Protection Act 1970 (Vic) and how lawyers can minimise potential future liability for contamination through due diligence and contract drafting.

Transnational Corporations (TNCs) are increasingly relevant players in the global economy, and international law is evolving to account for their growing impact. These trends are particularly visible in respect of the protection of the environment and human rights, on the one hand, and in the operation of investment law and arbitration, on the other. This subject will examine the challenges posed upon international law by TNCs, with an emphasis on two focal areas: (i) the interaction between investment arbitration and the environment; (ii) the interaction between human rights and TNCs. Those two focal areas will enable students to visualize the imbalances apparent in the international legal order relating to TNCs. The lecturer combines many years of academic experience with international practice at the Human Rights Council and in investment arbitration.

Principal topics include:

• An analysis of the rise of the TNC as a critical player in the global economy, as well as a critical analysis of the imbalances apparent in the international legal order relating to TNCs
• Review of the conceptual framework relevant to the legal relations between States and corporations, including notions of sovereignty and the law on diplomatic protection, human rights law and investment law
• An examination of key cases involving the general law on diplomatic protection as applicable to corporate actors, including Barcelona Traction and Diallo
• Debates regarding the policy issues at stake in investment arbitration and the environment, including the right and duty of States to regulate private actors and the tension between stability and change in investment law
• Key investment arbitrations pertaining to the environment and human rights, including landmark cases such as Methanex, Tecmed, PacRim, Chemtura and Clayton
• Historical evolution of the debates on TNCs at the United Nations, from the draft Code of Conduct on Transnational Corporations up to the Guiding Principles on Business and Human Rights
• An examination of the content and scope of State duties to control the activities of non-state actors, within their jurisdiction and extraterritorially, in order to protect human rights
• Current processes at the UN Human Rights Council toward a binding instrument on human rights and TNCs, including key building blocks and debates on principles, scope and mechanisms
• The potential for future developments in the field.

This subject focuses on legal and policy issues concerning the regulation of environmental quality. The first part of the subject considers the theoretical foundations of environmental regulation, including economic and non-economic perspectives on environmental degradation; the scientific predicate for environmental regulation; the objectives of environmental regulation; the valuation of environmental benefits; the distributional consequences of environmental policy; and the choice of regulatory tools, such as command-and-control regulation, taxes, marketable permit schemes, liability rules and informational requirements. The second part analyses the political dimensions of environmental law, including the role of the various institutional actors, the allocation of regulatory authority in a federal system, and public choice explanations for environmental regulation. The third and major part of the subject analyses, from legal and policy perspectives, the principal United States (US) environmental statutes, particularly the Clean Air Act, the Clean Water Act and the statutes regulating hazardous substances.

Principal topics include:

• Economic and non-economic perspectives on environmental degradation
• Scientific predicate for environmental regulation: Risk assessment
• Objectives of environmental regulation: Risk management
• Distributional consequences of environmental policy
• Choice of regulatory tools: Command-and-control regulation, marketable permit schemes and effluent fees
• Choice of regulatory tools: Deposit-refund systems, liability rules and informational approaches
• Federalism and environmental regulation
• Environmental law and public choice
• US Clean Air Act
• US Clean Water Act
• US Resource Conservation and Recovery Act (RCRA)
• US Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA): Introduction; potentially responsible parties.

Water law and natural resources management are fundamental to human society, environmental protection and many aspects of economic productivity. Legal rules around water co-evolved with the development of many societies. Water is both necessary for life but also a source of conflict. This subject considers the international laws governing water, including principles addressing trans-jurisdictional water governance for major river systems. It canvasses emerging questions, such as whether there is a human right to water, and climate change impacts on water availability. It examines the development of common law rules around water allocation and water quality that retain an important role in water management. There is a major focus on indigenous water rights.

The general development of statutory-based water law, concentrating on the Australian federal and Victorian situation, provides the main case study of water law and governance. The subject examines the water law reforms leading to adoption of the national Water Act 2007, and covers the federal legislation, such as the development of environmental water regulation and water trading. It provides an examination of the Victorian water legislation, which explores catchment and natural resources management issues. The subject has a focus on groundwater and looks at impacts on groundwater due to mining and fracking. This subject covers urban water laws, with a focus on novel uses, such as water recycling and storm water capture.

Principal topics include:

• International law and policy governing water, including examination of relevant treaties and conventions
• Water rights: including human rights and cultural rights – especially those of Indigenous peoples
• An overview of the current system of Australian statutory regimes for surface water and groundwater allocation and use
• Australian national water and resource management reforms, including the National Water Initiative
• The Water Act 2007 (Cth), including water trading and water planning
• Environmental water regulation
• Victorian water laws, including water authorities and governance models
• Water quality: addressing point source and diffuse water pollution
• Integrated catchment and natural resource management, including relevant catchment management legislation
• Urban water laws, including alternative water uses such as stormwater, and innovative recycling models such as water-sensitive urban design.

In many ways, national constitutions are closely tied to their nation states. They are made with the authority of the people of the state. They are often important national symbols. Arguably, they need to be responsive to the circumstances of the state, in order to be effective. On the other hand, constitutional rights are becoming increasingly globalised, drawing freely on comparative experience as well as international human rights norms. This subject provides an international perspective on bills of rights, exploring both the similarities in norms and differences in the ways in which they are understood and given effect. In doing so, it provides insights into how new constitutional rights instruments might most effectively be designed and interpreted. It covers topics such as: arguments for and against bills of rights, the institutional arrangements for the enforcement of bills of rights, proportionality or limitation analysis, the horizontal application of bills of rights and socio-economic rights. The relevance of these issues to the interests of students in the class will be a theme throughout the subject. The lecturer is a leading comparative constitutional rights scholar, whose writings on The New Commonwealth Model of Constitutionalism have attracted world-wide attention.

Principal topics will include:

• The context: Australia today—its current Constitution and the Bill of Rights debate
• Constitutional rights in Canada: When they arrived (1982); what they look like; how the Charter of Rights and Freedoms balances the powers of the courts and legislatures and what Canada might have to offer Australia
• Comparisons with other forms of rights protection in the United States, the United Kingdom, and New Zealand
• Constitutional rights in federal systems of government (i.e., Canada, the United States and Australia)
• The literature and theory of judicial review: The nature of the debate, the relationship between courts and legislatures and judicial review under different models (i.e. ‘strong’ versus ‘weak’ rights-protecting instruments)
• Australia’s future options going forward.

This subject explores comparative constitutional law from a deliberately global perspective. It seeks to take account of the constitutional experience of all regions of the world including Asia, the Americas, Europe, Africa and Australasia. It thus provides an excellent platform on which to evaluate the competing claims of constitutional universalism and particularism, to critically test the global relevance of a range of constitutional theories and practices and to understand how context and culture affect constitutional law in an age of globalisation. Key topics of general relevance chosen for the purposes of comparison include executive/legislative relations, judicial review, constitutional change, socio-economic rights and the relationship between domestic constitutional and international law. The lecturers are leading constitutional scholars from India and Australia respectively, who bring to the subject different bodies of knowledge and experience.

Principal topics include:

• Mapping the constitutions of the world
• Methodological challenges in comparative constitutional law
• Concepts of a constitution
• Executive/legislative relations
• Courts and judicial review
• Socio-economic rights
• Constitutional change
• Comparative constitutional problem-solving.

Many established Constitutions of the world of the 21st century provide for federalism or related forms of territorial devolution, as do many of the more recent Constitutions, especially those drawn up in the aftermath of conflict. This subject examines federal Constitutions as a sub-set of comparative constitutional law. It takes a global perspective that encompasses federal-type systems in all regions of the world, whether formed by aggregation or devolution. It canvasses the theories that underpin federal arrangements, the principal design options, the interface between federalism and the protection of individual or group rights, federal Constitutions in operation over time, judicial interpretation of federal Constitutions and the methodological problems that arise in comparing federal constitutions. Professors Jackson and Saunders, the lecturers in the subject, come respectively from the United States and Australia. They bring to the subject deep knowledge of their own federations and considerable expertise in comparative federalism and comparative constitutional law.

Principal topics include:

• Mapping the federal-type systems of the world
• Key features of federal constitutional systems: power; resources; institutions; other
• Interface between federalism and other constitutional arrangements, including rights protection and the form of government
• Judicial interpretation of federal constitutions
• Methodological challenges in comparative federal constitutional law.

Human rights adjudication has expanded in many jurisdictions across the world in the past few decades. Yet there is still scepticism about the role of courts in human rights adjudication and the question whether Australia should adopt a justiciable bill of rights remains an open one. This subject will provide students with the opportunity to reflect critically on the role of courts in human rights adjudication by introducing them to the different approaches to the adjudication of human rights in a range of jurisdictions including South Africa, India, the United States, Germany, Canada, Israel, the European Union and Australia. Several key human rights issues that have arisen in different jurisdictions will be analysed and compared.

Principal topics include:

• What are human rights?
• Different approaches to judicial review of rights
• Different traditions and conceptions of constitutionalism and of rights jurisprudence
• Key issues in rights jurisprudence: hate speech, political speech, freedom of religion, social and political rights
• Current challenges for human rights protections.

More than 90 new constitutions have been made for countries across all regions of the world since the fall of the Berlin Wall in 1989. Currently, constitution-making is actively underway in a range of states and pending in others. This concentrated burst of activity has given rise to a range of new ideas about the nature and purpose of constitutions, constitutional solutions to contemporary problems, the processes of constitution-making and the proper role of international actors. This subject explores these issues, with particular reference to a series of topical case studies, including Fiji, Iraq, Kenya, Nepal, Timor-Leste and Yemen. The lecturers are constitutional scholars with practical experience in the field who add to the excitement and relevance of the subject

Principal topics include:

• Nature, functions and limitations of constitutions
• Circumstances in which constitutions are likely to be renewed or substantially changed
• Influences on new constitutions
• Substance of constitutions
• Phases of constitution-making:
  • Peace process (if any)
  • Setting the agenda
  • Design and writing
  • Approval and adoption
  • Implementation
  • Interpretation
  • Selected case studies drawn from Egypt, Fiji, Indonesia, Iraq, Kenya, Pakistan, the Philippines, Solomon Islands, South Africa, Sri Lanka, Swaziland, Thailand, Timor-Leste, Tunisia, Yemen and Zimbabwe among others.

Constitutional Law in Practice focuses principally, but not solely, on the litigation of constitutional matters in the High Court of Australia. In recent years, the High Court has been very active in the constitutional arena, and it is important to understand not only the substance of the issues the Court has dealt with but also how constitutional cases come before the High Court (and other courts), the process by which they are heard and decided and the relief that can be granted. In addition, constitutional law arises in practice in non-litigious settings, in particular in the provision of advice to government (both from government lawyers and from independent practitioners). This subject aims to critically evaluate the practice of constitutional law and to build key skills, such as written and oral advocacy. To that end, the assessment takes the form of preparation and presentation of both the written and oral aspects of an application for special leave to appeal to the High Court. The subject will also involve presentations from leading constitutional law academics and from practitioners who appear regularly in the High Court.

Principal topics will include:

• Initiating a constitutional case
• Bases of jurisdiction
• Remedies
• Applications for special leave
• Written submissions
• Oral argument
• Use of comparative and international materials
• Interpretation and overruling
• Interventions and amicus curiae
• Consequences of invalidity
• The case studies will be based on recent major constitutional litigation before the High Court. Issues to which attention will be paid in relation to each case study include:
  − The basis of the decision to litigate
  − Any impediments to litigation
  − The jurisdiction of the High Court, including the need for special leave
  − Standing
  − Justiciability
  − The choice of remedy or remedies
  − Forensic strategy
  − Methodology of the High Court, as revealed by decision
  − Reflection on the nature of judicial review.

This subject responds to the increasingly globalised nature of constitutional law by examining significant constitutional questions that recur across various legal systems.

Comparative study of constitutions provides a deeper, more systematic understanding of constitutional law and governance. In particular, it provides opportunities to discover that aspects of one system are not necessarily replicated elsewhere.

The subject will enrich students’ understanding of the constitution with which they are most familiar. It is of practical significance for scholars, advocates and for those involved in the formation and implementation of public law policy and reform.

Principal topics will include:

• Legislative powers over inter-State trade and taxation
• Resolving conflicts within federations
• Proportionality and other methods of judicial reasoning
• The nature of constitutional rights.

Key decisions of the High Court of Australia will be examined. The principal comparator jurisdictions include Canada, the United States, Germany, South Africa and some European jurisdictions.

Constitutional government is limited government. Government is limited by the establishment of rules governing its institutions and by dividing power along federal lines. Equally important are those aspects of constitutions that identify specific limitations on government. These constitutional law provisions and judicially created doctrines are the focus of this course. Constitutional rights, freedoms and limitations have been the subject of many of the most important High Court cases of recent decades. The subject will provide a thematic and in-depth discussion of those cases, including cases on freedom of political communication, voting rights, separation of judicial power (and its effect on federal and state courts), intergovernmental immunities, freedom of interstate trade in a federation and the rule of law as a limitation on power.

This subject will therefore explain and critically analyse the key contemporary questions relating to these areas of constitutional law in the context of ongoing debates in comparable jurisdictions. It will help students understand the current complexity and anticipate future developments in the High Court.

Principal topics include:

• The nature and extent of the ‘express limitations on power in the Australian Constitution including:
  • Freedom of religion
  • The right of trial by jury
  • Freedom of interstate trade
• The nature and extent of the separation of judicial powers in the Australian Constitution including the significance of the separation of judicial power for federal and state courts and for charters of rights (like the Victorian Charter of Rights and Responsibilities)
• The implication protecting representative and responsible government including the significance of the implication for voting rights, the financing of political campaigns and rights of protest in Australia
• Key methodological issues arising in the judicial interpretation of limitations on power including the role of proportionality analysis.

From one of the earliest concerns of morality and political philosophy to the subject of the latest global treaty sponsored by the United Nations, corruption has had a fascinating role in human affairs. Corruption’s importance as a matter of law and policy has grown in recent decades, thanks to an increasing awareness of its devastating effects on development efforts, human rights, democracies, economies, and environmental protection efforts. Responding to that growing importance, this subject provides an overview of domestic, regional, and global approaches to corruption.

The domestic approaches examined in this subject include those undertaken by a sample of Latin American and Asian countries, as well as Australia, New Zealand, and the United States. The regional approaches targeted include those sponsored by the Organization of American States, the Asian Development Bank, Asia-Pacific Economic Cooperation, Council of Europe, the Organisation for Economic Co-operation and Development, and the World Bank. Finally, at the global level, this seminar covers the United Nations Convention Against Corruption (UNCAC).

Entering into force in 2005 and obtaining 183 States Parties by 2017, the UNCAC has taken strides in implementing a comprehensive and partially binding global approach to corruption. This subject explores the five pillars of that approach—international cooperation, preventative measures, criminalization and law enforcement measures, asset recovery, and technical assistance and information exchange—and their linkages to domestic and regional initiatives. A major question at this stage will be the UNCAC’s ability (or potential) to supplement or improve upon those pre-existing initiatives.   

At each of its three levels of legal inquiry (domestic, regional, and global), this seminar examines questions of substantive law (what conduct is targeted), procedure (how are suspected violations of the law exposed and addressed), institutions (how is each legal framework administered and modified), and effectiveness (under a number of metrics). Notably, this subject addresses the advantages and criticisms of anti-corruption law in its many forms.     

Although this subject relies primarily on legal analysis, it also encompasses economics, history, and political science. That interdisciplinarity enables the consideration of the broader questions that inform anti-corruption law. Those questions include: How are definitions and patterns of corruption changing over time? What effects does corruption have on development, businesses, local economies, and global capitalism? What effects does it have on human rights, democratization, elections, and lawmaking? What lessons have been learned about the effectiveness of different legal approaches to corruption? How could domestic, regional, and international anti-corruption initiatives be improved?  

Principal topics include:

• What is corruption? How is corruption defined by different legal regimes?
• How does corruption manifest in distinct environments, including campaign and party finance, elections, lawmaking, law enforcement, government procurement, business, international development efforts, and banking and finance? What are corruption’s economic, political, and social effects?
• What are the regulatory challenges involved in preventing, exposing, and punishing corruption in its distinct environments? To what extent have domestic, regional, and international legal regimes been successful in meeting those challenges?
• How could those laws and institutions be improved? In particular, what are the main successes and shortcomings of the UN system for preventing and combatting corruption? What are its prospects for improvement? 
• What are the different roles that lawyers play in addressing corruption? What skill sets do they employ?

This could not be a more interesting and important time to engage with some of the most challenging issues in administrative law. Australian administrative law has undergone rapid change in recent years. In significant respects it has diverged from the rest of the common law world, under the influence of the Australian Constitution. Some of the resulting doctrines are not yet in a settled state. At the same time, however, administrative law continues to play the critical role in mediating relations between people and the institutions of government that in Australia’s case is heightened by the absence of systemic arrangements for the legal protection of individual rights. The two lecturers in the subject bring a combination of practical and scholarly perspectives to bear on the selected topics, all of which are chosen for their contemporary relevance.

The subject will focus on key themes in Australian administrative law, which are likely to include:

• Jurisdictional error; the related notion of invalidity
• Unreasonableness, irrationality and illogicality
• Policy
• Boundaries of judicial review
• Constitutionalisation of administrative law.

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Do judges make law? If they do, how is the law that they make different from that which legislatures make? Do legislatures have intentions? In legal systems that subscribe to the principle of legislative supremacy, are there any limits to what the legislature can enact? Is it better that courts be constitutionally entitled to review the legality of laws that legislatures enact? Absent this entitlement, what can courts do with those laws? This course has students consider these questions by examining the law-making functions of legislatures and courts, idea of legislative intent, the concepts of legislative supremacy and judicial review, the concept of ex post facto law and the core principles of statutory construction.

Principal topics will include:

• Enacted and judge-made law
• Legislative intent and supremacy
• Ex post facto law
• Judicial review of legislation
• Statutory interpretation.

The powers of the executive branch of government have been debated in some of the most significant constitutional cases in Australia in recent years. Despite the High Court’s decisions in the School Chaplains Cases, Pape v FCT and migration cases including CPCF v Minister for Immigration and Border Protection, the scope of these powers and the validity of many government programs and activities remain very unclear.

This subject will explain and critically analyse the key contemporary questions relating to the powers of executive government in Australia. It will help students understand the current complexity and anticipate future developments in the High Court.

Key questions to be addressed include: When can the Commonwealth act through the executive branch alone? When does it require legislative support for its programs? What is the effect of legislation on the inherent powers of the executive branch? When can legislation displace, override or otherwise limit executive power? When does executive power stray into powers that can be exercised only by the legislature? How do these questions play out in the context of the federal system? Can the Commonwealth “outsource” the exercise of executive power to private bodies? Are there limits on the powers of Parliament to hold the executive accountable? What does the Commonwealth become liable for harmful consequences of executive action? What light does the constitutional law of comparable jurisdictions shed on any of these questions?

Professor Simon Evans is a constitutional law scholar at Melbourne Law School with particular expertise in the executive branch of government. Graeme Hill regularly advises the Commonwealth and state governments concerning constitutional matters and appears in the High Court in such matters, including matters related to executive power.

Principal topics include:

• The conceptual foundations of executive power: the Crown, the nation and the people
• Inherent executive power and non-statutory executive power, including the continuing relevance of “the prerogative”
• The privileges and immunities of the executive government
• The liability of the executive government
• The effect of legislation on non-statutory executive power and on executive discretion
• Responsible executive government in a contemporary federation
• The executive power to conduct foreign relations and the impact of international law
• Executive spending, contracts and section 96 grants: the impact of responsible government, federalism and separation of powers
• The executive as law-maker and the validity of delegated legislation.

A fundamental question to be considered in every court proceeding is the character of the jurisdiction being exercised by the court - whether state or federal. Federal jurisdiction is the authority conferred upon Australian courts by the Constitution and laws made under it to adjudicate upon cases within the classes of matter set out in sections 75 and 76 of the Constitution. Whether federal jurisdiction is involved is a threshold question for the parties and for the court in any proceeding.

The subject will consider the origins and concept of federal jurisdiction, its application in the Australian judicial system and the interaction between federal, state and territory laws and the common law in the exercise of federal jurisdiction. There will be discussion of how its conferral on state and territory courts supports implications limiting the imposition or conferral on those courts of functions that are inconsistent with their institutional integrity.

The subject is not without complexity but the central principles are relatively simply explained.

The subject will be delivered by the Hon Robert French AC, former Chief Justice of Australia and before that a Justice of the Federal Court of Australia for 22 years, and Frances Gordon, barrister practising in public law at the Victorian and New South Wales Bars.

Principal topics include:

• The concept of jurisdiction and the distinction between original and appellate jurisdiction
• Federal jurisdiction, its origins, the meaning of the term and the relevant constitutional provisions conferring and authorising its conferral and statutory grants conferring federal jurisdiction
• The United States model
• The Australian court system in historical and functional perspectives
• The idea of a 'court' - when is an administrative tribunal also a court for the purposes of federal jurisdiction
• The content of federal jurisdiction - the concept of the 'matter'
• The application of state and territory laws and the common law in the exercise of federal jurisdiction
• Removal and remitter of matters between the High Court and lower courts
• The Kable case and its sequelae, a consequence of the scheme for the distribution of federal jurisdiction?
• Can federal jurisdiction be abolished.

Freedom of Information (FOI) laws have been introduced in over 90 countries around the world to date, with most of these being introduced in recent years. The right to information is increasingly recognised at both domestic constitutional level and by international human rights tribunals. At the same time, FOI is experiencing considerable challenges in terms of the balancing of access rights against other important societal values, such as the protection of privacy, law enforcement and the protection of national security. Here in Australia, the FOI landscape has undergone significant change in recent years. This subject explores the way in which the tension between access and other interests is being negotiated in the new Australian FOI regime. It offers insights from other jurisdictions, both domestic and international. The lecturer brings to this subject a wealth of experience of writing, lecturing and advising on FOI matters in various parts of the world.

Principal topics will include:

• Background to the development of access legislation
• Access to information: The theoretical framework
• The human rights dimension of access to public information
• Reuse of government information
• National regimes on access
• Comparative approaches
• Defining the ‘public interest‘.

Freedom of speech is a widely agreed upon principle in free democratic societies. However, at the same time, it is at the centre of fierce and wide-ranging disputes. This subject will examine the rationales for protection of freedom of speech and key controversies about freedom of speech. The subject will be broadly comparative, examining the legal protection of freedom of speech in Australia, Europe, Asia and North America. Jurisdictions of particular focus (in addition to Australia) will include India, Malaysia, Germany, the United States and Canada.

Principal topics include:

• Normative arguments for freedom of speech and for the regulation of speech
• The legal mechanisms for protection freedom of speech in international law and selected domestic jurisdictions
• The relationship between freedom of speech and laws regulating:
  • racial and religious vilification (including holocaust denial)
  • political protest
  • electoral funding
  • terrorism and national security.

There are many bodies that exercise regulatory power at the global level. Some are traditional international bodies where the principal players are nation states. Many are transnational bodies where the principal players range from national regulators to private firms. This leads to questions as to how to legitimate and render such power accountable. The possibility of developing principles of global administrative law is one response. This subject will examine the scope of global administrative law as it currently exists, the potential for further development and the problems, both practical and conceptual, that will have to be overcome if this is to be done. The subject will include two case studies of particular international and transnational bodies, and the way in which principles of global administrative law might enhance accountability.

Principal topics include:

• The rationale for global regulation
• An overview of international and transnational regulatory bodies
• The arguments for and against development of principles of global administrative law
• The procedural and substantive content of such principles
• Case study of the World Trade Organization
• Case study of the International Organization for Standardisation.

This innovative subject is designed to explore the highly topical phenomenon of the globalisation of constitutional law. Taking the idea of legitimate authority as a focus, it examines two broad themes: (1) the extent to which national constitutional law is, or should be, converging on international standards; and (2) the extent to which international institutions are, or should be, influenced by standards of a constitutional kind. Under theme (1) it examines whether the constitutions of the world are, or ought to be, converging towards a point at which it will be possible to identify constitutional standards that apply within each state, with implications for the legitimacy of each constitutional order. Under theme (2) it examines the constitutional standards that properly apply to legitimate international legal institutions, e.g. Security Council, International Court of Justice (ICJ) and the World Trade Organization (WTO). Bringing the two themes together, the subject concludes by examining the prospects of a global constitutional court tasked with upholding a global constitutional minimum. The two lecturers in the subject bring different bodies of expertise to bear on these challenging issues. Laureate Professor Cheryl Saunders works in the field of global comparative constitutional law; Professor John Tasioulas is a legal philosopher, whose work focuses on international law.

Principal topics will include:

• The forces of internationalisation and globalisation
• Concepts and standards of legitimacy
• Mapping the constitutional systems of the world
• The possibilities of common standards
• Mapping the international legal system
• Constitutional standards and international institutions
• Case study: an International Constitutional Court?

This new subject will consider cutting-edge issues in the law governing the liability of public authorities. Government liability is a field of great practical significance for government and those who interact with government. It also raises difficult issues of theory, lying at the border of public law and private law, and complex policy questions, such as the balance to be struck between interests in individual redress and public interests including the preservation of public finances. The subject will focus on the law of Australia and common law jurisdictions.

The subject will consider significant issues that arise across the major fields of liability. Within the law of torts the course will consider: public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services; misfeasance in public office; malicious prosecution; private and public nuisance; trespassory torts; statutory immunities or defences that provide special protection to public authorities; particular difficulties relating to governments direct and vicarious liability; and issues in the law of damages, including the novel subject of vindicatory damages. Within the law of unjust enrichment, the subject will consider the different grounds on which public authorities can be stripped of unjust gains, and particular issues associated with claims for the return of taxes unlawfully demanded. In the law of contract, the course will consider various special rules that may apply to government contracts including immunities, and will consider the consequences where contracts are entered into without authority. The subject will also consider the history of law reform proposals that seek to make government compensate for ultra vires administrative action, and the role of ex gratia payments.

Principal topics include:

• The law of torts
  • Public authority negligence, including liability for regulatory failure, and of child protection agencies, police and emergency services
  • Misfeasance in public office
  • Malicious prosecution
  • Private and public nuisance
  • Trespassory torts including false imprisonment
  • Vicarious liability of public authorities
  • Statutory immunities and special defences for public authorities
  • Damages awards against public authorities including vindicatory damages
• The law of unjust enrichment
  • Grounds for seeking restitution against public authorities
  • Recovery of unlawfully demanded taxes
  • Special defences for public authorities
• The law of contract
  • Special rules regulating government contracts
  • Consequences of ultra vires contracts
• Compensation beyond private law
  • Law reform proposals for compensation for ultra vires administrative action
  • Ex gratia payments.

This subject will evaluate a range of policies and green technologies that have been adopted as part of the emerging global effort to mitigate emissions of greenhouse gases associated with climate change. It will examine the legal, economic, and policy dimensions of efforts to promote the development and diffusion of green technologies, emphasising the role of market-based mechanisms and patent rights. The subject will focus on policy developments in the United States, Europe, and Australia, and will assess the merits of different policy instruments (eg, patents, renewable-energy portfolio standards, tax breaks, direct subsidies, prizes) as means of overcoming the barriers to development and deployment of green technologies. A series of technology-specific case studies will be discussed, with technologies including renewable sources of electricity, biofuels used in transportation, green building, and carbon capture and sequestration. The subject will utilise in-class exercises, including green technology pitches, a simulated trading regime and structured policy debates. Students should note that traditional regulation of fossil fuels and economic regulation in the electricity sector will not be covered.

Principal topics include:

• Green technology - barriers and opportunities
• Economics of positive and negative externalities
• Traditional environmental regulation and innovation
• Pitfalls and promise of policy portfolios built around pollution trading regimes
• Renewable energy policies
• Policy myths and realities of grey technologies.

This subject seeks to understand how judges arrive at judgments and thus the complex question of adjudication. By examining key elements of the vast literature that has analysed the process of adjudication, the course attempts to develop the conceptual tools by which each student can approach the reading of judgments of courts. The subject then intensively discusses a number of important cases from various jurisdictions – the United Kingdom, the United States, Australia, South Africa and Canada. By applying the insights learned from the earlier conceptual discussion, the course examines the judicial mind that has given rise to the judgments so studied. In this way, the subject talks to practitioners who litigate and can reflect on the means of help shaping the judgment they so seek, as well as to those lawyers who wish to develop a comprehensive understanding of both the theory and practice of adjudication.

Principal topics include:

• A critical reading of key texts – Hart, Raz, Fuller, Dworkin, Habermas, Derrida and Kennedy
• Language, linguistic theory and the law
• Reading judgments (Australian and comparative) – both in the area of constitutional/human rights law and private law
• The impact of political emergency upon the judicial function/adjudication.

Political, social and constitutional upheavals are currently in full swing in Latin America. What happens in Latin America produces flow-on effects in all regions of the globe. This subject offers a survey of the different models of democracy currently ‘competing’ in the region, and a consideration of how those models translate into different ‘models’ of constitutionalism. The subject offers an analysis of the current constitutional debate in Latin America, contextualising that debate within the history of constitutionalism in the region over the last two hundred years. The subject will relate the contemporary constitutional debate to global and regional debates about models of democracy and the impact of globalisation in constitutional law and practice. The subject will also focus on the role played by the Inter-American Human Rights System in both the constitutionalism and models of democracy debates.

Principal topics will include:

• Conceptions of ‘democracy’ and conceptions of ‘constitutionalism’ in contemporary Latin America
• Neo-liberal democracy, social democracy, radical democracy and populism in Latin America
• Historical perspectives on constitutionalism in Latin America
• The judicialisation of Latin American politics
• Global influences in Latin American constitutionalism
• The Inter-American Human Rights System and constitutionalism in Latin America
• Processes of constitution making in contemporary Latin America.

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.

This subject studies the central mechanism for democratic accountability – elections. It adopts an interdisciplinary approach to underscore how this area of law is shaped by normative principles, the political process and practical considerations. The subject will be situated in the context where the dynamic interaction of diverse and powerful actors shapes the design and practice of such law.

The subject also aims to develop amongst students the critical ability to assess the strengths and limitations of the Australian version of electoral democracy. Integral to its aim is the comparative perspective of the subject where the examination of key questions will be informed by international standards and relevant examples from other countries, which may include Canada, India, Indonesia, South Africa, the United Kingdom and the United States.

Principal topics include:

• Why do elections matter? Democratic theories of elections and their critiques
• Which public officials should be elected? The case of judges
• Constitutions, elections and democracy
• What happens during elections? The election campaign, the institutional actors (political parties, third party campaigners, the media, electoral commissions and the courts)
• The voting process (compulsory voting, preferential voting, proportional voting)
• Electoral rights (right to vote, freedom of political association, freedom of political expression)
• The drawing of electoral boundaries
• Regulation of political parties
• Money in electoral politics
• Electoral law-making: the challenge of making democratic electoral laws in a party system
• The role of courts and electoral commissions in electoral law
• International standards in elections: is there a ‘best practice’?
• A case study in the limits of election law: lobbying and its regulation.

Intergovernmental relations permeate every aspect of Australian government. It is not possible to fully understand Australian law without an appreciation of how it is affected by arrangements between the Commonwealth and the states. Corporations law, mining law, environmental law, medical law and a host of other fields are based, in one way or another, on arrangements of this kind. This unique subject deals with the complex and opaque framework of law and practice by which intergovernmental arrangements are structured. It demonstrates that the framework is changing, through new legislation, intergovernmental agreements and constitutional interpretation, and offers students the knowledge and skills to follow and critically assess these developments for themselves. The use of examples from current intergovernmental arrangements makes this an intensely practical subject. The subject design also presents the big picture in a way that encourages the class to reflect on the significance of the phenomenon of intergovernmental co-operation as a whole. While the subject has a primarily Australian focus, international students who are curious about multi-level government may find it of interest for this reason as well. Both members of the teaching team have long experience in the area and bring to the subject a rich mix of theoretical understanding and practical insight, from Australia and elsewhere.

Principal topics will include:

• General constitutional principles
• The intergovernmental relations map
• References of power: Constitution section 51(38)
• Techniques for uniform law
• Grants and agreements
• Intergovernmental institutions
• Executive cooperation
• Cooperation between courts
• The High Court and intergovernmental cooperation
• Administrative law and intergovernmental cooperation
• Fiscal federalism and intergovernmental relations.

This subject examines some persistent legal problems relating to the making and application of law. These include the following:

• What does it mean to speak of a system of binding precedent? What status might (should) foreign precedents have in other jurisdictions?
• Can judges make law? If they do, how is the law that they make different from that which legislatures make?
• Do legislatures have intentions? Are there any limits to what the legislature can enact?
• Should courts be constitutionally entitled to review the legality of laws that legislatures enact? Without this entitlement, what can courts do with those laws?

The subject will cover issues of interest to students from both civil and common law jurisdictions.

Principal topics include:

• The characteristics of, and differences between, enacted and judge-made law
• The nature and authority of precedent
• Retroactive law
• Judicial review of legislation
• Approaches to statutory interpretation.

Money in politics raises profound challenges for democracies across the world: billion-dollar American presidential elections have led United States being branded the 'best democracy money can buy'; in Indonesia, the tactics of ‘money politics’ are regularly decried; and in Australia, unregulated political spending in federal elections raise concerns about the fairness of such contests.

What should be the role of the law in regulating money in politics? What should be the principles to determine the content and the limits of such law? What should be the respective roles of the legislature, executive and the judiciary in shaping such laws? And what should be the institutional framework for ensuring compliance with legal obligations?

This subject will adopt a cross-national approach to examining these challenging questions. It will examine the experiences of a range of countries including those from the Commonwealth (eg Australia, Canada, the United Kingdom), Europe (eg France and Germany), South-East Asia (eg Indonesia) and the United States. Taught by two leading experts in this field, the subject will draw out the tensions and dilemmas in regulating money in politics.

Principal questions examined include:

• What are the regulatory challenges of money in politics?
• What standards and principles should apply to the regulation of such money? Do these standards and principles vary according to particular national contexts? Is it meaningful to speak of international standards or international ‘best practice’?
• How should political donations and campaign expenditure be regulated?
• How should public funding of campaigns and political parties be provided?
• What should be in the institutional framework governing the regulation of money in politics? Which branch of government should have the power to enact such laws? What institutions (eg electoral commissions; anti-corruption commissions) should be responsible for effectively enforcing such regulation?

Religious minorities in Western democracies are seeking legal accommodations, especially the freedom of maintaining an autonomous judiciary to handle internal family law matters. Drawing on the rich experience of countries where such accommodations were granted, the subject will inquire into the legitimacy and problems associated with such accommodations. In doing so, the subject will draw on modern theories of multiculturalism.

This highly topical subject deals with some of the most significant, challenging and contested issues in the legal systems of the world in the 21st century. It is likely to be of considerable interest to students from a wide range of jurisdictions and backgrounds.

Principal topics include:

• Liberal multiculturalism, theory and practice
• Group accommodations in a democracy
• A survey of religious groups and illiberal practices
• Traditional schemes of religious accommodations, with special reference to the Ottoman millet system
• The reality of religious accommodations in Western democracies
• The reality of religious accommodations in the Middle East, with special reference to Israel.

This topical subject deals with the interface between private law and public law in common law systems from the perspectives of history, doctrine, theory and practice. It will explore the traditional absence of such a division in the common law, and the reasons for this, as a basis for understanding the relevance of the distinction in the contemporary legal system. The subject will critically assess the distinction from a theoretical perspective, testing whether the idea of a distinction between public law and private law can withstand scrutiny. A range of cutting-edge doctrinal issues will be examined and placed in wider context. These include whether public law principles should extend to the activities of non-governmental entities such as private firms and charities; whether the law should recognise a special set of rules to regulate public contracts; whether public authorities should be governed by the ordinary law of tort or a set of special administrative liability principles; procedural divisions between public law and private law; the role of the public interest in private remedies and of private remedies in public law cases; and whether public law issues should be heard by specialist administrative courts. The subject should be of interest to lawyers working in any field in a common law legal system and to those trained in the different traditions of the civil law who are interested in better understanding the structures and assumptions of the common law.

Principal topics are likely to include:

• History of the concept of public law in common law legal systems
• Concepts of public and private
• Implications of a distinction between public law and private law
• Overview of current practice
• Law applicable to non-governmental entities
• Legal framework for public contracts
• Liability of public authorities
• Remedies
• Specialist or generalist courts.

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); 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
• Appraising Regulation: regulatory accountability; regulatory legitimacy: between democracy and expertise.

Royal commissions and other forms of public inquiries are used by all governments. Inquiries such as the 2009 Victorian Bushfires Royal Commission and the Royal Commission into Institutional Responses to Child Sex Abuse are a frequent response by government to a major issue or event. Most Australian governments also have standing bodies with inquisitorial powers. The Federal Government has a variety of standing commissions, such as the Australian Crime Commission and the Australian Securities and Investments Commission (ASIC). Nearly every state now has a corruption commission, and several have crime commissions and police integrity bodies, all with coercive investigative powers. Coronial inquests occur in every state and territory. Lawyers advising clients affected by these inquiries require a detailed knowledge of their procedural rules, administrative and constitutional law, procedural fairness, common law privileges and other rights.

This subject is designed to equip students to deal with such inquiries at any level, whether in government departments, the private bars, working as solicitors or in corporate law offices, or as legal advisers to corporations.

Principal topics include:

• Introduction to public inquiries
• Appointment and composition
• Supply of information
• Power to compel
• Limits on the power to compel, including public interest immunity, privilege against self-incrimination and privileges of parliament
• Application of administrative law, including procedural fairness and judicial review
• The role of counsel assisting
• Legal representation and assistance
• Contempt
• Reopening of completed inquiries
• Reform.

In the absence of an Australian bill of rights, the separation of powers doctrine is one of the key foundations for the imposition of restrictions on legislative and executive power in Australia.

This subject examines recent developments in the constitutional implications that prevent the conferral of non-judicial functions on federal courts, the conferral of federal judicial power on anyone other than courts, and the related implications concerning the constitution and functions of state courts, including limitations on legislative or executive directions to those courts.

The issues of substantive constitutional law will be examined through the prism of the law and practice that governs constitutional litigation in the High Court. The subject is structured by reference to a hypothetical case study in which participants will be taught to: identify the substantive issues arising from the case study; draft the main kinds of initiating process in the High Court; consider the choices involved in various procedural steps in constitutional litigation; draft submissions addressing those steps; identify the facts necessary to advance the selected constitutional arguments; address in detail, in the course of drafting written submissions and preparing oral submissions, the substantive questions of law that arise from the case study; and write a judgment disposing of the case study.

Principal topics include:

• The meaning of ‘judicial power’
• Aspects of the High Court’s original and appellate jurisdictions
• Separation of powers under the Commonwealth Constitution at the federal level
• The protection of state courts under the Commonwealth Constitution – Kable and cases developing or reformulating the Kable principle; also, Kirk.

States are important, as state-building exercises round the world indicate, yet there are regular suggestions that their significance is waning under pressure from globalisation externally and fragmentation internally.  This subject examines this paradox from an internal perspective, addressing four main questions.

• What do we mean by “state”?
• Why do “states” arise (when they arise)?
• How do they manage to establish themselves?
• What problems do states face, and how do they try to overcome them?

To answer the questions, we have to consider political philosophy, history (including the meaning and purpose of history in state-making), the growth and operation of institutions, empires and decolonisation, the use of coercion in the functioning of states, the roles of constitutions, and the relationship between states on the international plane.  We shall look at ideas of race and nation and their relationships to “state”, and undertake a number of case-studies, touching on Middle Kingdom Egypt through classical Greece and Rome, England since the fourth century CE, Ireland, the USA, Australia, and Bosnia and Herzegovina. Students will be encouraged to bring their own experiences and insights to the classes to illuminate the discussion.

Principal topics include:

• Ways of understanding the term “state”: language, sociology, history, and the relevance of “nation” and “people”
• Ways of legitimating state power: political theory and morality
• Ways of holding society together: Bryce, Durkheim and Weber
• Ways of establishing states: decolonisation, revolution, secession, international action
• Histories, institutions, values, religions and constitutions.

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.

Contemporary governments use contracts as a key tool of governance. Outsourcing of public services is commonplace. But should we regulate the use of such tools by means of public administrative law, or through private law, or a mixture of both?  Is there an accountability deficit? What are the advantages and risks of contracting out, and how can and should the law respond?

Professor Janet McLean brings both public law and private law perspectives to bear on the subject of public contracting drawing on Australian, New Zealand and United Kingdom examples.

Principal topics include:

• The distinctive normative bases of private and private law and their implications for government contracts
• The decision to outsource
• The reach of judicial review, freedom of information and human rights law, and financial reporting rules, into the realm of contract law
• Implied terms, procedural requirements and interpretative methods in contract law
• Procurement rules and other internal government guidance
• Public private financing initiatives and other examples of government contracting
• The auditor-general and the role of private auditors.

A properly functioning legal system can be seen as a defining characteristic of modern society. The adversary system can be seen as a defining characteristic of a common law legal system. But as times change, both the common law and the adversary system of trial have changed and will continue to change. What then are the bases of these systems? What corollaries follow from adopting a particular mode of trial? What are the challenges with which the Australian legal system must now deal in resolving disputes? How might those challenges be dealt with and are there implications for what we define as the adversary system and, more generally, the rule of law in a properly functioning legal system?

Principal topics include:

• Development of the common law
• The 20th century adversary system
• The adversary system today and its implications
• Statutes and the common law
• Lessons from other systems
• Complexity – issues, evidence, experts and costs
• Curial method – the law, facts and findings
• Economic and commercial implications – class actions, alternative dispute resolution, arbitration and access to justice
• Legislative and executive power
• Implications for the rule of law and the practitioner.

This subject provides an opportunity to learn about how different societies grapple with common challenges in health care systems and to consider whether and how these comparisons can be helpful in guiding change within a particular system. While human biology is similar worldwide, the economic, social, and ethical aspects of health care are reflected through the prism of each society’s culture, history and political framework. The legal responses to these economic, social and ethical debates therefore can vary from one society to another. This subject will explore comparative approaches to topics ranging from the structure and financing of the health care system to legal aspects of reproduction and death. The subject, while referencing Australian approaches, will use Canada and the United States as the base for comparison and will explore the approaches adopted in other countries as well.

Professor Bobinski recently completed serving as the Dean of the Allard School of Law at the University of British Columbia, Canada. She has taught Comparative Health Law in Canada and the United States. She recently served as the President of the American Society of Law, Medicine and Ethics and as a member of the Canadian Public Health Officer's Ethics Advisory Committee, and previously directed a top-ranked health law program in the United States.

Principal topics will include comparative approaches to health law and policy rules in areas such as:

• The right to health and health care financing
• Regulation and/or licensing of health care professionals
• Quality of care
• Contraception, abortion and sterilisation
• Fetal conflicts
• Assisted reproduction, including the implications of advances in genetics
• Consent to or refusal of care, including cases involving death and dying
• Public health law including traditional aspects (eg contagious diseases) and new areas such as public health approaches to obesity.

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Health inequalities represent the most enduring and consequential global health challenge of our time. A child born in sub-Saharan Africa, for example, will live on average nearly 30 years less than a child born in Australia. This subject provides students with a firm understanding of the role of international law in promoting, or harming, human health. It covers ‘hard’ law such as the Framework Convention on Tobacco Control, as well as ‘soft law’ such as the World Health Organization (WHO) Global Strategy on Diet, Physical Activity and Health. The lecturer brings into the discussion multiple international fields that powerfully affect health, such as trade, agriculture and climate change, and covers pressing topics including emerging and re-emerging infectious diseases (like Zika, Ebola and influenza) and the increasing burden of non-communicable diseases. The central theme running throughout the discussions will be global health justice. The subject uses innovative teaching tools to highly engage students, including case studies and real-life simulations.

Professor Lawrence Gostin is an internationally renowned scholar in international public health law at Georgetown University and has recently published a definitive and ground-breaking book on this subject (Global Health Law, Harvard University Press, 2014).

This subject will provide students with an in-depth understanding of global health law and examine the major contemporary problems in global health, the principal international legal instruments governing global health and the principal international organisations and innovative solutions for global health governance in the 21st century. It will cover naturally occurring infectious diseases, past and future epidemics, bioterrorism events (eg anthrax or smallpox) and/or major chronic diseases caused by modern lifestyles (eg obesity or tobacco use).

Principal topics include:

• Health in a globalised world
• The ‘grand challenges’ in global health
• National security and global health: national interests, enlightened self-interest and health diplomacy
• International health law: the WHO International Health Regulations and the WHO Framework Convention on Tobacco Control
• Health and human rights
• World trade and world health
• Innovations in global health governance: towards a framework convention on global health.

Health, trade and investment laws and norms interact in multiple ways, both to the benefit of health and to its detriment. This subject explores both the harmonies and the tensions across these critical areas of policy and governance at legal, normative, operational and institutional levels. It draws out some of the major themes by examining a number of high-profile areas of controversy in detail, in particular the World Trade Organization and investment treaty challenges to Australia’s tobacco plain packaging laws; the tensions between intellectual property protection and access to affordable medicines, medical technologies and devices; and contests over the negotiation of new trade and investment agreements, particularly their implications for governments’ regulatory space to protect and promote health. It is conducted by two leading global health law practitioners who bring both academic expertise and practical experience.

Principal topics include:

• Global health law and governance
• International trade and investment law and governance
• International trade and investment challenges to tobacco control
• Trade and investment law issues in access to affordable medicines, medical technologies and devices
• Trade and investment law issues in the regulation of alcohol and unhealthy food
• The protection of health in the negotiation and implementation of trade and investment agreements, including the Trans Pacific Partnership Agreement
• The role of evidence in health-trade-investment policy development and litigation
• The opportunities and challenges for achieving multi-sectoral health-trade-investment collaboration and understanding

Data relating to an individual’s physical and mental health and condition can reveal extremely sensitive information. Valuable health data also underpins improvements in health care and can be useful for other government and commercial purposes. How can the law protect the principle of medical confidentiality and enable the data flows necessary for a modern learning healthcare system, public health, and other public interest purposes?

Health privacy and data protection expert Mark Taylor considers the relevant law and governance in Australia and comparable jurisdictions. This subject will provide students with an advanced and specialised knowledge of health data governance, including relevant privacy and data protection law. It will invite critical consideration of relevant law benchmarked against the Recommendation of the Organisation for Economic Co-operation and Development (OECD) Council on Health Data Governance and other international standards.

Principal topics include:

• Legal concepts of ‘personal health data’, ‘identifiability’, ‘reasonable expectation’ and ‘public interest’
• Transparency, informed consent, and respect for individual objection
• Confidentiality and third-party access, including family members, researcher, public health and government
• Feedback of incidental findings and the ‘right not to know’
• Oversight and approval mechanisms, with consideration of issues raised by increasing use of new techniques of machine learning and analysis of big data (including algorithmic accountability in health care context)
• International transfer and cross-border cooperation.

This subject will address a range of human rights in the health law area, including bioethical origins of contemporary views of health rights; Article 12 of the International Covenant on Economic, Social and Cultural Rights and the role of the Special Rapporteur; rights to engage in health tourism; rights to life and death; rights to health information; rights to civil remedy and compensation for malpractice; rights to coronial investigation of deaths; rights to complain about registered practitioners; and public health law rights.

Principal topics include:

• Bioethical and human rights to health
• Rights to health
• Rights to obtain health services overseas
• Rights to health information
• Rights to compensation for malpractice
• Rights to death
• Rights to death investigation
• Rights to complaint and notification.

This subject will examine patients’ expectations and legal rights when receiving health care, their avenues for complaint and compensation, and accountability mechanisms (including professional discipline) for protecting the public in the event of health, performance or conduct problems involving a health practitioner. The focus will be on patients and health practitioners in Australia and New Zealand.

Principal topics include:

• Patient safety
• Patients’ needs and rights following an adverse event
• Open disclosure
• Defensive medicine
• Health practitioner regulation (including the Australian Health Practitioner Regulatory Scheme)
• Health complaint systems in Australia and New Zealand.

Following a five year inquiry and the 2017 release of the report of the Royal Commission into Institutional Responses into Child Sexual Abuse after, the issue of child sexual abuse in institutional settings gained extensive attention from the public, political representatives and legal commentators. The inquiry contributed to new understandings of the incidence and extent of physical, sexual, psychological and emotional abuse in a range of institutional settings, including schools, hospitals, churches, sporting organisations, foster homes and other accommodation services. The debate on how the law may best respond to the abuse continues, with judicial attention to the current law, and political attention to law reform. There are many challenging issues associated with the legal redress of child abuse, including time limits for claims, liability for the criminal acts of others, the onus of proof, and the appropriate compensation regime.

This subject examines the background to and current understandings of child abuse in institutional settings, the relevant tort law in Australia (with international comparisons) and the challenges of its application to these situations, recent and proposed tort law reforms, and the new Australian ‘Redress Scheme’.

Bill Madden is a lawyer specialising in injury compensation including intentional torts and the overlays provided by statutory reform and statutory schemes. He is a regular writer and presenter on tort law topics.

Principal topics include:

• The challenges of historical abuse
• Findings from the Royal Commission and other inquiries
• Liability of the perpetrator – the legal framework
• Liability of the institution – the onus of proof, criminal acts, vicarious liability and non-delegable duty
• The significance of mandatory reporting of abuse
• Tort law reforms – limitations, the onus of proof and legal structures
• Redress schemes, framework, boundaries and fairness
• Future reforms.

This subject will examine ways in which law is affecting, and being affected by, the latest advances in medical technology.  It will cover a variety of fascinating technologies including genetic, big data analytics, regenerative, therapeutic, artificial intelligence  and reproductive technologies. It challenges students to think not only about the future of medicine, but the future of human life itself. Are legal systems dealing with these issues in adequate, legitimate, and strategic ways?

Significantly, the course is not simply for medical lawyers. The syllabus weaves specific technological case-studies with important cross-cutting themes drawn from regulation theory, law reform, and applied philosophy. Those  themes are organised so as to provide a framework for critical thinking about regulatory reform and the role of law, lawyers and the medical profession in this process. The themes also impart knowledge and skills relevant to a wide range of industries where law must deal with substantial scientific uncertainty and ethical controversy. Students with interests in privacy, human rights, tort law, IT governance, artificial intelligence, science and technology, family law, and risk regulation are all catered for.

The subject will not be limited to any particular jurisdiction, but focusses on Australian and European law and draws widely on world events. It will be taught by Dr Kathleen Liddell, Director of the Centre for Law, Medicine and Life Sciences (Cambridge) who has more than 20 years’ experience in academia, legal practice, law reform, policy advice and ethical analysis.

Principal topics include:

• Human enhancement, cryogenics and other controversial scientific techniques
• Reproductive technologies ‘old and ‘new’ including IVF, embryo selection, artificial gametes, womb transplants and ectogenesis
• ‘Big data’, data analytics, AI and machine-based learning in healthcare
• Genetic technology, gene editing and personalised medicine
• Future therapeutics
• Regenerative medicine including organ transplants and human stem cell treatments
• Other topical issues that arise while the subject is being taught.

Cross-cutting themes include:

• Challenges of uncertainty, ambiguity, transformative potential and technological ‘drivers’
• ‘Ladders’ of regulatory intervention
• Phases in the maturation of health technology regulation
• Bioethical debates surrounding utility, autonomy, best interests and the public interest
• Limits of informed consent and paternalism as regulatory devices
• Regulatory ‘tourism’
• The purpose and impact of public engagement
• Other recurrent ethical and social issues such as technological exceptionalism and moral relativism
• Different policymaking cultures
• Incentives for innovation with a particular focus on cutting-edge issues in patent law

Medical practitioners, policy-makers, the courts, patients and families are dealing with ongoing debates in medical ethics ranging from euthanasia, abortion, resource allocation and managing the risks of research, to issues thrown up at the cutting-edge of science where we can now edit the germline, or create new life via so-called 'synthetic biology'. While we have existing legal frameworks in place for some of these issues, enormous moral disagreements remain. How should we think about these issues?

This subject aims to provide a basic toolkit and skills to engage in deeper ethical reflection about the major debates in medical ethics and about advances in the biological and neurosciences. Professor Julian Savulescu is Director of the Centre for Practical Ethics, the Oxford Centre for Neuroethics and the Institute for Science and Ethics, University of Oxford. He is Editor of the Journal of Medical Ethics and is a recognised world leader in medical ethics. The goal of this subject is not to provide answers to these medical dilemmas, but to enable students to think more deeply for themselves about what their position is and to be able to justify that position to others. A variety of perspectives will be covered through the use of guest lecturers.

Principal topics include:

• The current revolution in bioethical reasoning and methods in bioethics
• Making good medical/moral judgments for self and others
• Basic ethical theories and concepts
• Abortion
• Euthanasia
• Regulation of research, including:
  • Gene editing
  • Stem cell research and cloning
  • Transgenesis and human-non-human chimeras
  • Synthetic biology
  • Sale of biological material and body parts
  • Regulation of doping in sport
  • Reproductive cloning
  • Human enhancement
  • Genetic selection
  • Coercion in reproduction
  • Neuroethics.

2017 marked the 25th anniversary of the landmark Australian medical law decision Rogers v Whitaker. Medical litigation remains an exceptionally vibrant and challenging field, underpinned by the rapid pace of scientific and social developments that generate new issues for the law. Many of the more challenging issues are at the core of policy – birth, reproduction and death. The legal issues are fundamental, covering the existence of duties, what should be considered negligent, the challenges of legal causation and the appropriate compensation regime – all against a background of insurance affordability, the ongoing health and safety improvement mechanisms, the reporting and disclosure agenda and the Australian National Disability Insurance Scheme. This subject examines the framework of medical litigation, current challenges and issues on the horizon.

The subject presenter Bill Madden is a lawyer specialising in medical litigation, the co-author of two health law texts and a regular writer and presenter on medical law topics.

Principal topics include:

• History and incidence of medical litigation
• The impact of recent legal and court-based reforms including mediation
• The medical indemnity marketplace and government intervention
• Duty, breach of duty and statutory defences/special protections
• Consent, informed consent and treatment errors—the legal differences
• Causation and loss of chance
• The importance and changing framework of expert evidence
• Privacy and confidentiality issues
• National regulation, conduct and crime
• Mandatory reporting impacts
• Coroners’ investigations and hearings.

This subject will analyse the relationship between psychiatry, psychology and law in contemporary Australia. It will address criteria and policy relating to involuntary status and the use of coercion in relation to those with mental illnesses and intellectual disabilities, focusing on the Mental Health Act 2014 (Vic) and the Disability Act 2006 (Vic); the role of the 2013 DSM-5; fitness to stand trial; mental impairment; sentencing of offenders with disabilities; expert evidence by mental health practitioners; mental harm litigation; the role of post-traumatic stress disorder (PTSD) in civil litigation; prediction of risk in criminal law; syndrome evidence in litigation; profiling evidence; and therapeutic jurisprudence.

Principal topics include:

• Involuntary status in contemporary Australia
• The role of the Chief Psychiatrist, the Mental Health Commissioner and the Mental Health Tribunal
• The role of DSM-5 and ICD-10
• Therapeutic jurisprudence
• Mental impairment
• Expert evidence by psychiatrists and psychologists
• Sentencing of offenders with mental illnesses, brain injuries and intellectual disabilities
• Fitness to stand trial under international criminal law
• Civil litigation and complaints against mental health practitioners
• Mental harm litigation
• PTSD in the law
• Prediction of risk evidence
• Syndrome evidence.

Drawing on key examples from Australia, the Western Pacific and South east Asia regions, with some reference to other regions of the world, this subject examines how the law may be used as a tool to improve public health and prevent illness and disease. It also considers how laws may negatively impact the public’s health if not carefully crafted. In Public Health Law, students will develop specialised knowledge of the legal basis for public health regulation and of particular domestic laws that are relevant to a variety of critical contemporary public health issues. They will also examine the role of domestic law in relation to global public health issues and international law. The subject will complement the Melbourne Law Masters subject Global Health Law, but it is also intended to be studied independently and no prior knowledge will be assumed. Specific areas of public health concern that will be considered include communicable diseases; family health, gender and the life course; health system strengthening and universal health care; health security and emergency responses; and non-communicable diseases. The subject will also examine the law’s reach and limits noting other tools that play a vital role in achieving public health.

Principal topics include:

• What is public health law?
• The law in context:
  • Communicable diseases
    • HIV/STIs/Hepatitis
    • Immunisation and vaccines
  • Health security and emergency response
  • Surveillance and outbreaks (alert and response, International Health Regulations (IHRs))
  • Biosecurity
  • Emergency and humanitarian responses
  • Gender, equity and human rights
  • Maternal and reproductive health
  • Healthy ageing
  • Access to health services
  • Access to medicines/therapeutic goods
  • ‘Life-style’ diseases and the law
  • Substance abuse
  • Disability and injury prevention
  • Family health, gender and the life course
  • Health system strengthening and universal health coverage
  • Non-communicable diseases.

Over the past few years there have been profound changes in the regulation and registration of the health professions. Fifteen professions are now included in a national scheme and others may join them. All of the registered professions are covered by the same legislation for accreditation, registration and the monitoring of practice, to ensure that standards are maintained to protect the public. More than 700,000 health practitioners are registered under the national scheme and, when it was adopted in July 2010, 66 acts of parliament were repealed and about 85 health professional boards were abolished. This subject will provide a detailed examination of the scheme, which has centralised the disciplinary process, with the state and territory registration bodies acting under delegated authority from the federal board. The subject will also provide an understanding of how health practitioners, their employers and educators can report ‘notifiable conduct’ of practitioners to the national regulator, and how healthcare consumers (patients) can lodge a ‘notification’ about the practice of a health practitioner. The course will scrutinise the concept of revalidation, and the health, fitness/character, performance and conduct pathways, analysing the factors that lead to different forms of disciplinary findings and determinations for different forms of problematic conduct, including sexual misconduct and serious error. It will examine what differentiates permissible from impermissible advertising, will evaluate how unregistered practitioners are now regulated and will explore how registered, unregistered and deregistered practitioners’ conduct is regulated by consumer protection legislation.

Principal topics include:

• Legal requirements for accreditation, registration and monitoring of practice of health practitioners in Australia
• The process and grounds for disciplinary action
• An examination of specific disciplinary proceedings against health practitioners, looking at issues of conduct, health, performance and fitness
• A comparison of disciplinary proceedings and other legal action against health practitioners
• Analysis of the regulatory mechanisms applicable to unregistered practitioners
• An evaluation of the new registration scheme and its operation to date
• A review of consumer protection actions that can be taken against health practitioners, both those who are registered and those who are not.

The private sector represents one of the most important and daunting challenges facing the human rights community. As the reach and influence of companies has grown – sometimes dwarfing the states in which they operate – their impact on human rights has become impossible to ignore. Human rights have become the currency of major brands, helping determine Citibank financing, Exxon-Mobil relations with communities and working conditions along Wal-Mart’s enormous supply chain. Shareholder activists, NGOs, social movements, the media and governments are demanding greater transparency and reporting on human rights. The United Nations (UN), the Organisation for Economic Co-operation and Development (OECD) and the multilateral banks have adopted human rights standards for companies, and a growing body of soft and hard law (domestic and international) is beginning to define the precise scope of corporate human rights obligations. This subject will explore the fast-growing field of business and human rights, highlighting the most critical legal and practical issues surrounding efforts to advance corporate responsibility and accountability.

Principal topics include:

• The history of the business and human rights movement
• The political and ideological challenge to applying human rights to business
• The legal framework and institutions for corporate human rights accountability
• The UN “Protect, Respect, Remedy” Framework and UN Guiding Principles
• The debate around a global treaty on business and human rights
• Multi-stakeholder initiatives and soft law human rights standards
• Key legal challenges: effective remedies, 'non-state actors', 'sphere of influence' and 'complicity'
• Litigating corporate human rights
• Non-judicial advocacy strategies
• Business and human rights case studies
• The business management perspective on human rights and implementation challenges.

What is the relationship between human rights and just criminal sentencing? Does the level of imprisonment reflect something significant about the character of a society? The world’s population of incarcerated people has increased dramatically in recent decades. Mass incarceration, sentencing policies and excessive punishment have become serious issues in the United States and many other nations, while the reliability and fairness of the criminal justice system have been questioned. This subject will examine the costs of modern trends towards increased use of incarceration and the impact of these policies on vulnerable populations like juveniles, the mentally disabled, racial minorities and the poor. In this subject, the rule of law surrounding crime and punishment is explored through a human rights frame with attention to reform strategies and the way forward.

Principal topics will include:

• Sentencing policy
• Mass incarceration and excessive punishment
• The impact of current policies on the poor and vulnerable
• Reform law and litigation strategies
• The intersection of human rights and criminal law

This subject examines the human rights of people with disabilities. The Convention on the Rights of Persons with Disabilities (CRPD) is the newest United Nations (UN) human rights treaty. This subject analyses the interpretation and implementation of the CRPD. It also explores the effect of multiple forms of marginalisation; for example, individuals with disabilities that are members of other minority groups, such as women, transgender people or racial minorities. This subject is relevant for students who are interested in reform in this area or for those interested in exploring the newest iteration of UN human rights law.

The lecturer has both personal and professional experience in this field and has a network of collaborators, including UN bodies, government actors, community groups, academics and others. She draws on her experiences and connections to deliver substantive law as well as provide an insight into the lived experience of disability.

Principal topics include:

• Personhood and the right to equal recognition before the law
• Decision-making and the right to legal capacity
• Violence and the right to freedom from abuse
• Mental health and the rights to liberty and consent to treatment
• Universal design, reasonable accommodation, and accessibility
• Medical, social, and human rights models of disability.

International human rights law encompasses two sets of rights – the traditional civil and political rights, and economic, social and cultural rights. The latter group include the rights to food, health, housing and education, as well as labour rights. It is commonly suggested that widespread governmental neglect of these rights in many states has contributed significantly to the rise of populist politicians promising to upend the existing order and revive the fortunes of the increasingly marginalised middle class. Social rights might thus represent a crucial new frontier for mainstream human rights advocacy, as an antidote to neoliberalism and a response to the demand, including in the global South, for an approach to human rights that meaningfully addresses the most pressing needs of the majority.

In practice, however, the status of social rights, as human rights, is deeply confusing. China and many of its allies claim that these are by far the most important human rights, but their policy prescriptions focus largely on economic growth. In many other countries, social rights have achieved broad constitutional recognition and are considered justiciable, but judicial enforcement is limited and problematic. Social rights are prominent on the international human rights agenda, but with little to show for it, and they remain conspicuously marginal in the activities of the world’s leading human rights NGOs.

Principal topics include:

• The need to reconceptualise social rights
• A focus on the necessary economic, fiscal, and financial policies
• A review of attitudes to social rights in Australia and of their relevance in light of a longstanding antipathy to the acceptance of international human rights obligations in domestic law
• The future of the welfare state
• The UN Sustainable Development Goals
• Proposals for a universal basic income, and for social protection floors.

This subject is a collaborative effort to reflect on, critique, appreciate, and learn about international advocacy that responds to global injustice using a human rights framework.  It provides a map of the field of international human rights advocacy—its dominant forms of action, strategies, and range of methods—and introduces students to the core elements and skills involved in that work, including the collection of evidence of human rights abuses; interviewing witnesses, governments and other potential opponents; report writing; media work; advocacy strategies; quantitative and qualitative methods; litigation; and measuring effectiveness.  The subject also introduces the ethical principles and professional rules related to human rights lawyering. It addresses the obstacles to effective global justice and human rights work, and the technical, procedural, and substantive problems with the manner in which advocates investigate abuses, seek accountability, and conduct advocacy. Teaching materials are drawn from a diverse range of fields and interdisciplinary sources including law, medicine, psychology, political science, social theory, critical theory, toolkits and how-to-guides, stories, video, podcasts, human rights reports, and witness testimony.  The success of the subject depends, to a great extent, on the active, engaged, and critical participation of students. The subject will be of interest to students whose work already intersects with human rights directly or to students who wish to explore ways to further inject human rights into their work. It is designed to be of relevance to students whether they are working within Australia, other countries or at the international level.

The subject will examine human rights law and institutions; ethics for human rights lawyers; crafting strategy; fact-finding (including interviewing, documentation, open source investigations, and quantitative and qualitative research methods); and advocacy methods (including reporting, campaigning, messaging, and litigating).

The applicability and relevance of human rights to armed conflict has become one of the most debated issues surrounding the use of violence internationally and domestically. Traditionally, human rights law and the law of armed conflict were seen to be complementary but also largely incompatible. Yet both have been converging with the laws of war being increasingly ‘humanised’ and human rights increasingly ‘militarised.’ What is involved in this cross-fertilisation? Might it have unintended consequences? For example, some human rights activists have supported war ‘in the name of human rights,’ while many human rights NGOs have considered issues relating to the laws of war to be outside their remit. Does this mean human rights support war? When it comes to the regulation of armed conflict, the laws of war are widely held to be the applicable ‘lex specialis’ in armed conflict, as opposed to human rights. What does it mean for the laws of war to displace human rights as the regime of choice to regulate certain types of violence? Is it a triumph of humanitarianism or of violence?

Principal topics include:

• To what extent have human rights featured in justifications of resorting to violence within and across boundaries? What is the relevance of notions such as ‘the responsibility to protect,’ ‘human security,’ ‘the human right to security’ or ‘protection of civilians’ in building a new global regime of violence?
• What is an armed conflict? How does it displace the normal applicability of human rights provisions? How does the changing nature of armed conflicts justify changes in normative emphasis?
• What is the existing jurisprudence on the applicability of human rights to armed conflict, with particular emphasis on relevant case law of the European and Inter-American Courts of Human Rights?
• How and when do human rights apply extra-territorially? The subject will look at issues arising from military attack, occupation, detention, handover of prisoners, rendition, etc.
• How might human rights help address differently issues of (i) gendered violence, (ii) new weapons such as drones, or (iii) targeted assassinations?
• Should non-state actors be recognised as a greater power to engage in violence and if so in exchange for what?
• Which actors are legitimised by the laws of war or human rights and how do modes of intervention in armed conflict differ?
• How might the emphasis on human rights change the focus of accountability?
• Do international organisations engaging in violence have human rights obligations? What military deployments fall short of belligerency?

This subject will introduce and explore the main concepts, laws, institutions and policies at the intersection of international climate change law and international human rights law.

Specifically, this subject will explore two aspects of the intersection between climate change and human rights. First it will explore the nature and extent to which the impacts of climate change and response measures to address climate change can affect the realization of core human rights. It will examine the substantive and procedural rights afforded through national, regional and international instruments to those affected by environmental harms, and the ways in which such rights can be extended to cover climate harms. It will in this context analyze cases in national, regional and international courts and tribunals that engage human rights in the context of climate harms. Second, this subject will examine the treatment of human rights in the international climate change regime, and the prospects for further integration of human rights concerns in the regime. 

More broadly, through a study of these two aspects, this subject will examine the potential, prospects and limits of international law in protecting the rights of those affected by climate harm.

Principal topics include:

• Articulation of environmental protection in the language of human rights, both substantive and procedural, in international, regional and national human rights systems, instruments and case law
• Autonomous ‘right to a healthy environment’ and its extension to a healthy climate
• ‘Greening’ of established rights such as the right to life, health and privacy, and their extension to protection from climate harms
• Treatment of human rights in the UN Framework Convention on Climate Change, the Kyoto Protocol, the 2015 Paris Agreement, and the 2018 Katowice Rules

This subject examines the human rights system from an anthropological perspective, as a social system. It studies the practices of international conventions and conferences as well as local communities and non-governmental organisations. This subject focuses on tensions and translations between human rights and culture, including opposition to human rights in the name of protecting cultural differences. To resolve the apparent opposition between culture and rights, it is important to understand how human rights are mobilised in specific contexts. Issues will be explored through case studies including the International Criminal Tribunals for Rwanda and the former Yugoslavia, current cases before the International Criminal Court, the World Social Forum and Global Justice Movement, and the unfolding impact of the United Nations Declaration on the Rights of Indigenous Peoples. The lecturer is an anthropologist and former lawyer who has worked on human rights issues in Australia, the United States and Europe.

Principal topics include:

• The human rights system in practice: major conventions, procedures and organisations
• Historical genealogies of ‘culture’ and ‘human rights’
• The meanings of universalism and relativism
• Contestation, resistance and critique of human rights
• Culture and indigenous rights
• Human rights and social movements
• The translation of human rights into local contexts: the process of vernacularisation
• Rethinking the human rights system as a set of social practices as well as a system of law.

The relationship between human rights and economic globalisation has taken different forms since the establishment of the United Nations. The early period was animated by the codification of economic, social and cultural rights, and third generation solidarity rights, including peoples’ rights to permanent sovereignty over natural resources. From the 1980s onwards, economic globalisation and the normative, legal and institutional means by which it would be advanced became dominant globally, with the negative influences of international trade and investment shaping the development of human rights. In the recent period, human rights have been situated as a response to many of the concerns around economic globalisation. With a focus on social-economic rights, this course will engage with human rights under conditions of economic globalisation, from their normative and institutional beginnings to their recent application as bulwarks against current threats.

Principal topics include:

• The post-1945 United Nations Charter international order and its relationship to developments in economic globalisation
• International protection of economic, social and cultural rights (standards and mechanisms, including the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights)
• Third generation solidarity rights: right to development, permanent sovereignty over natural resources and economic self-determination, and their political and economic context
• Global capitalism and the shaping of rights.

We live in a period of rising scepticism concerning human rights, their foundations, purposes and efficacy. Yet, the language and law of human rights remains one of the truly global languages of political, moral and legal claim-making. This course will unpack and examine the tensions and contradictions of contemporary human rights law and politics. It will first consider the historical origins of contemporary human rights frameworks, with special attention to the polemical debates about the origins of human rights. It will then examine various theories of human rights and their foundations, and as the question: what is global justice and what do human rights have to do with it? Finally, the course will inquire into the utility and uses of rights to challenge harms widely perceived as instances of global injustice: inequality and uneven development, labour exploitation and military occupation. In the end, we will ask, what can we expect from human rights law today?

Principal topics will include:

• The history of human rights law and practice
• Theories of human rights and global justice
• Human rights and inequality
• Human rights and labour exploitation
• Human rights and military occupation

Since 11 September 2001, there has been a global trend towards enacting new laws and adopting new measures against terrorism, reflected in developments on the national, regional and international levels. Many such counter-terrorism laws and measures have raised questions about the nature of human rights law, and the extent of its adaptability in face of security imperatives. Others have revealed clear human rights violations and exposed the fragility of respect for the rule of law. Responses by the courts and international mechanisms have had a role to play in redressing this reality in various ways, but they too have met challenges. This subject addresses the international law framework within which responses to terrorism, and to counter-terrorism, unfold. It considers human rights law in the context of other relevant areas of international law and practice, such as humanitarian law and the law on peace and security. It examines legal questions not in abstract but by reference to examples from practice, and in light of the many real-life challenges to giving effect to the law in the security context today. It provides a stock-taking review and questions the human rights implications of global counter-terrorism practice.

Principal topics include:

• What is ‘terrorism’ and how does it fit within the framework of international law?
• Do terrorists violate human rights, and can they be held accountable?
• Which human rights are affected by counter-terrorism measures by states and how they are affected in practice?
• Is the prohibition against torture absolute, and what have been the challenges in practice since 9/11?
• How has the criminal law adjusted, and expanded, in recent years and what are the implications?
• Have restrictions on freedom of expression, association and assembly been legitimate?
• How has terrorist listing and sanctions against individuals and entities developed and what human rights issues arise?
• What implications are there for refugee and immigration law in the era of terrorism?
• What is the phenomenon of ‘foreign terrorist fighters’ and legal responses to it?
• How has the right to privacy been eroded in the name of countering terrorism, and when is surveillance lawful?
• What are strategic approaches to preventing and combating terrorism, and what are the long –term implications of trends in counter-terrorism practice to date?

This subject will draw attention to how and why the relationship between human rights and many marginalised groups has been highly fraught and replete with tensions. The subject will explore and unpack two central claims on which human rights law is based: first, that human rights are universal; and secondly, that human rights are an optimistic, progressive and emancipatory pursuit. These claims will be interrogated by focusing on the treatment of difference in international human rights law, including differences of gender, culture, indigeneity, sexual orientation, gender identity and religion, exploring how the `Other’ has been addressed in human rights law. Students will examine how the universality of international human rights law might yet be realised and learn how to grapple with some of the challenges posed by those who argue against universality, claiming i) that human rights are culturally specific to the West, and therefore inappropriate in non-Western cultural contexts; ii) that human rights are a ruse for pursuing neo-imperial or neo-liberal agendas; and iii) that human rights are exclusive and available to some humans, not all humans.

Principal topics include:

• Challenges to the universal claims of Human Rights Law
• Assessing these challenges in the context of the Universal Declaration of Human Rights
• Human Rights and the `Other’
• Gender Difference and the Complexities of Equality
• Cultural Difference and Human Rights (The Veil)
• Indigenous Difference and Human Rights (The Aborigine)
• Sexual Orientation/Gender Identity and Human Rights (The Homosexual)
• The Terrorist versus Human Rights (The Muslim).

This subject considers whether and to what extent international human rights law applies to the actions of states outside their sovereign territories. The focus is on international law only, not domestic law.

The extra-territorial application of international human rights law is one of the most contested and fast-moving areas of human rights law today. It is concerned with important and high-profile activities performed by states outside their borders, from war to occupation and anti-piracy and migration-related activities. This relatively under-explored area of law is of considerable current interest to governments (including their armed forces), international organisations and human rights non-government organisations (NGOs).

Principal topics include:

• The nature and scope of extra-territorial State activity, from war to occupation, the interception and detention of migrants and ‘pirates’, and the operation of embassies, military bases and detention facilities
• The main contours of international human rights law
• Relevant principles of general international law, including treaty interpretation, and relevant features of human rights law, including applicability in times of war and occupation, and co-application with other areas of law
• Arguments of principle in favour of and against applicability, including concerns about ‘legal black holes’, indirect nationality discrimination, abuses of detainees, double standards and ‘human rights imperialism’
• The main treaty provisions on applicability, including ‘jurisdiction’ and colonial extension clauses
• Key general features of extra-territorial applicability, including the substantive meaning of human rights law extra-territorially, and the relevance to this of self-determination; the possibility of activating ‘derogation’ clauses; and whether human rights treaties can and should apply to the actions of contracting states in the territories of other states not also parties to the same treaties
• The meaning of the two ‘jurisdiction’ triggers for extra-territorial applicability, based on the exercise of control over territory or individuals
• The extra-territorial application of other human rights treaties that use different triggers, notably the anti-discrimination treaties and the 1951 Refugee Convention
• The application and significance of the non-refoulement obligation extra-territorially.

This subject examines current human rights issues in Asia, with particular attention to East and Southeast Asia. Human rights is a deeply contested concept, particularly in the countries of East and Southeast Asia where there is ongoing debate over which rights are to be recognised and the ways in which these rights might be given effect.

In this subject we will investigate the way human rights issues are named, framed, and contested within – and sometimes across – Asian states. We will examine domestic institutions, rules, policies and practices concerning human rights, and investigate how rights claimants and their advocates (including lawyers and civil society groups) seek to challenge and broaden the state understandings of human rights, which often give priority to security and development. All subject materials will be in English and no knowledge of an Asian language is required, but of course students are encouraged to use non-English research materials as appropriate.

Principal topics for class discussion will include:

• The ongoing debates about the meaning and scope of human rights
• Domestic institutions for the promotion and protection of rights
• Mobilisation for human rights: the role of civil society and the legal profession
• Struggles over socio-economic rights
• Environmental rights claims in developing states
• Gender and sexuality rights
• Expressive rights and control of the media
• The contested meanings of freedom of belief

Student research papers may investigate additional or different topics.

In the past two decades, indigenous peoples have become increasingly prominent players in international law. Indigenous rights are now part of the mainstream body of international human rights law – comprehensively articulated in the United Nations (UN) Declaration on the Rights of Indigenous Peoples 2007. They also form part of the mandate of a number of UN agencies, including the International Labour Organization (ILO), the World Bank and the UN human rights bodies, and are directly supervised by indigenous experts within the UN system via the UN Permanent Forum on Indigenous Issues and the Human Rights Council’s Expert Mechanism on the Rights of Indigenous Peoples. These mechanisms increasingly provide leverage for indigenous claims in domestic law, and require governments to have regard to indigenous rights when making decisions affecting their interests. This subject explores the practice and theory of indigenous rights in international law and considers their influence on the domestic law and policy of Australia and other settler states. It addresses the distinctive qualities of indigenous rights and focuses especially on the central importance of collective indigenous rights to self-determination, culture and territory. This subject is co-taught by indigenous law experts Dr McMillan (Wiradjuri nation) and Associate Professor Gover.

Principal topics include:

• The history and current status of the UN Declaration on the Rights of Indigenous Peoples 2007
• The role and work of the UN Permanent Forum on Indigenous Issues
• The work and impact of UN Special Rapporteurs
• The development of general human rights norms in their application to indigenous peoples by the human rights treaty bodies, particularly the Human Rights Committee and the Committee on the Elimination of Racial Discrimination
• The development of ILO standards and the impact of its work domestically
• The extent to which Australian governments have incorporated international human rights into policy approaches in relation to Indigenous affairs
• The work of the Social Justice Commissioner in utilising human rights law and values in the Australian context
• Examination of comparative developments using examples such as the United States, Canada and New Zealand.

The fields of human rights and development have provided an important focus for the promotion of women‘s equality and empowerment in the United Nations (UN) era. Even as new policies and programs have been advanced in the name of women’s empowerment, we have also seen an intensification of economic exploitation and vulnerability to human rights abuse. This subject will trace the history and examine the impact of the strategies adopted to promote women‘s equality in both fields, and the links forged between them in rights-based approaches to development. The limitations as well as the potential of law and international institutions in promoting equality and social justice will be evaluated. Students will be challenged to assess how notions of ‘equality’, ‘gender‘, ‘human rights’ and ‘development’ have been defined in law, policy and practice. In addition to the generalised overview, the subject will examine how issues of women, development and human rights translate in particular arenas, including contexts of conflict/peace building, and contexts of transnational labour regimes.

This subject will trace the history and examine the impact of the strategies adopted by advocates for women‘s equality in the fields of international human rights and development law and policy.

Principal topics include:

• The links between human rights and development strategies in addressing questions of equality and social justice for women
• Impediments to advancing social justice for women including conceptual inadequacies, dominant models of development, dominant approaches to human rights, institutional marginalisation, gender bias in the law, the limits of legal liberalism and legacies of colonialism
• The limitations and potential of law and international institutions in promoting women‘s equality and social justice
• The role of transnational feminism both within international institutions and in global social movements/civil society
• The challenges of how questions of women, development and human rights are addressed in contexts of conflict/peace building
• The challenges of how questions of women, development and human rights are addressed in contexts of transnational labour regimes.

Human rights are a dominant but highly contested feature of ethical, political and legal thinking in the era ushered in by the Universal Declaration of Human Rights of 1948. This subject explores the many pressing questions raised by these rights from the point of view of contemporary moral, political and legal philosophy.

• Are human rights triggers for intervention or benchmarks of state legitimacy?
• Are they based on dignity, interests or some other value?
• How do we determine who has human rights and who bears the associated duties?
• Can human rights conflict with other values and how should such conflicts be resolved?
• Are human rights compatible with cultural pluralism?
• How should human rights be legalised?
• Is international human rights law legitimate in light of the claims of state sovereignty?
• How is the content of international human rights law to be determined?
• How should we reform or implement this law?

Principal topics include:

• The nature of human rights: moral, legal, political?
• The grounds of human rights: interests, dignity, God
• The subjects of human rights and the bearers of associated duties
• Conflicts involving human rights and their relations to the common good
• Human rights and cultural pluralism
• The legalisation of human rights
• The legitimacy of international human rights law
• Sources of international human rights law
• Reforming international human rights law
• Jus cogens, intervention and punishment.

The field of international human rights law is today composed of a multitude of legal instruments, implementation bodies, special procedures, human rights NGOs and transitional justice mechanisms. This subject provides the opportunity to examine this field in many of its dimensions, equipping students to navigate the system and critically assess its fundamental features. It will be of interest to all students who want to develop a detailed understanding of how the international human rights law system operates, including those with limited or no background in the area. The two lecturers have significant experience across a diverse range of topics and issues within international human rights law, which they draw upon to create an engaging and thought-provoking subject.

Principal topics include:

• Human rights and the challenges posed by state sovereignty and national security
• The contested universality of human rights
• The international institutional framework for the protection of human rights, with a special focus on the Human Rights Council and treaty monitoring system
• The interpretation and application of selected rights from the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Domestic measures for the implementation of human rights, such as judicial implementation of economic, social and cultural rights
• The norm of non-discrimination as it relates to race, gender, sexual orientation and gender identity
• The contribution of truth and reconciliation commissions to the protection of human rights
• Human rights law relating to refugees and asylum-seekers
• The challenges posed by economic globalisation.

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Issues concerning children, whether they arise at the international, regional or local level, are increasingly being examined from a human rights perspective. Much of the momentum for this movement has been generated by the United Nations Convention on the Rights of the Child (CRC), which was adopted by the UN General Assembly in 1989, and has been ratified by every state in the world except the United States and South Sudan. This subject is designed to provide students with an understanding of the CRC and the idea of a human rights-based approach to matters involving children. It will be of interest to anyone who works in areas that impact on children, either directly or indirectly, at the international, regional or local level. The lecturer has extensive networks with civil society, international bodies and government agencies that he draws on to provide an appropriate blend of academic and practical content.

The subject consists of two parts. Part one involves a general discussion of:

• The notion of children’s rights
• The international framework for the protection of children’s rights, with particular emphasis on the United Nations Convention on the Rights of the Child
• The factors that impact on the implementation of the Convention, both in Australia and overseas.

Part two involves an examination of specific issues relevant to children and how the Convention and a rights-based analysis can be used to respond to these issues. The issues will be drawn from areas such as:

• Sexual exploitation, including trafficking, prostitution and pornography
• Child labour
• Juvenile justice
• Child refugees
• Violence against children
• Children in armed conflict
• HIV/AIDS and children
• Child poverty and homelessness.

International migration is a topic of ever-increasing interest as a result of globalisation of labour markets and demographic pressures in sending and receiving states. This subject analyses the framework of international law that regulates the flow of people across international borders as regular or irregular migrants. It also equips students to understand the human rights of migrants who live or work in countries outside the state of their nationality. The subject aims to give students a broad understanding of connections between relevant legal frameworks rather than detailed knowledge of specialised regimes, and it is not a course in domestic migration law. The subject draws on a mix of international and Australian case studies, which befits Australia’s position as a major migrant-receiving country for over 60 years.

Principal topics include:

• Contemporary patterns of international migration
• Nationality and statelessness
• Regulating entry of persons
• Regulating exit of persons
• Refugees and asylum-seekers
• International labour migration
• International human rights of migrants
• Human trafficking and smuggling
• Emerging migration issues (eg environmental migration).

This subject explores and examines the international legal regime for the protection of refugees. The essential premise of the subject is that refugee law should be understood as a mode of human rights protection, the viability of which requires striking a balance between the needs of the victims of human rights abuse and the legitimate aspirations of the countries to which they flee. The primary objective of the subject is to enable students to develop a comprehensive understanding of the international legal regime for international protection – the basis for being granted protection in 147 countries, including Australia. The subject will situate Australian refugee law and policy within the context of Australia’s international obligations.

Principal topics include:

• History of the international system of refugee protection
• Legal and institutional framework of international legal protection
• The implementation of the Refugee Convention in Australian law
• Refugee status determination: domestic and international dimensions
• Responsibility sharing and shifting
• Principles of treaty interpretation applied to refugee law
• The definition of ‘refugee’ in international law
• Exclusion from refugee protection.

This workshop-style subject affords students the opportunity for both conceptual analysis and hands-on application of internationally guaranteed refugee rights.

The first part of the subject addresses the way in which rights are allocated under the Refugee Convention, and the interrelationship between refugeespecific rights and more general norms of international human rights law. Against this background, students will take up as a case study the right of refugees to work in asylum countries.

The second part of the subject is student-directed, with each student in the class taking responsibility to investigate a current situation in which refugee rights are arguably at risk, and to conceive and present an international legal intervention strategy for critique by the lecturer and other students.

Principal topics will include:

• Rights under the Refugee Convention
• Case study: The right to work
• Strategising for effective international intervention.

Since September 11, 2001, many questions have been raised about Islam and its relationship with human rights. 'Is Islam violent?' 'Why do Muslims hate freedom?' This subject explores how human rights and Islam came to be seen as oppositional. Through an examination of fatwas calling for non-violence, human rights advocacy calling for greater awareness of Islam and others calling to 'ban' Muslims, the subject will bring together the multiple, interlacing discourses that have produced this opposition. It explores how Islamic scholars have sought to synthesise Islamic laws with human rights, and how activists tread a fine line between criticism of religion and advocacy of human rights. The subject provides an introduction to Islamic law, an exploration of the jurisprudence of freedom of religion, a study of the international norms that come into tension with religious tenets, and an assessment of the impact of Islamic, human rights and constitutional laws on current conceptualisations of Islam and human rights.

Principal topics include:

• The history of freedom of religion in the International Covenant on Civil and Political Rights and constitutions across the world
• An introduction to Islamic law with a focus on the example of the legitimacy (or non-legitimacy) of engaging in violence – also known in the media as 'Jihad', as well as an exploration of minority rights in Muslim nations
• A study of the interaction between Islamic legal and human rights discourses and their impact on Muslims and non-Muslims in both Western and Muslim-majority nation-states.
• Introduction of the complexities of Islamic law and its variation across nation-states in the Muslim world
• The history of how the tension between human rights and Islam emerged in the late 20th century
• An analysis of how human rights are deployed by politicians, the media and academics in Western and Muslim-majority nation-states
• A study of the rise of Islamophobia in the 21st century, and the complicated ways in which Islamophobia is articulated in the language of human rights.

National Human Rights Institutions (NHRIs) provide a bridge between governments and civil society and are recognised within the United Nations (UN) system for their credible role in monitoring and advocating for human rights compliance within their country. A distinguishing feature of a NHRI is that, in order to meet the UN’s Paris Principles, it must be genuinely independent of the government that created it and that appointed its president and commissioners. Herein lies an inevitable tension. The obligation of the NHRI to monitor compliance with human rights may fail to meet the policy and political priorities of either or both the government and civil society. The independence of NHRIs is vital to ensuring evidence-based, legally accurate and objective monitoring of human rights compliance. That independence is however under constant threat. The United Nations Rapporteur on Human Rights Defenders plays a significant role in ensuring that states are held accountable for protecting the independence of their NHRI. So too, civil society can provide vital community support to ensure respect for NHRIs.

This subject examines the role of the 118 or so NHRIs throughout the world and argues for their strengthening and independence of government and for their voice within the UN human rights system.

Principal topics include:

• The international standards governing National Human Rights Institutions (NHRIs)
• The role of NHRIs in promoting and protecting human rights, from theory to practice; effective strategies; prevention and early intervention
• International monitoring mechanisms and their relationship to NHRIs; the effect of globalisation
• The mandates, functions and powers of NHRIs, with specific attention to those in Australia, Fiji, India, Indonesia, the Republic of Korea, Malaysia, Mongolia, Nepal, New Zealand, the Philippines, Sri Lanka and Thailand, and references to those in Afghanistan, Jordan and Palestine
• The relationship between NHRIs and government, parliament, the judiciary, other independent institutions, NGOs and civil society
• International and regional cooperation among NHRIs.

Human rights, community development and poverty are three areas that demand both critical academic scholarship as well as committed practical intervention. The three areas are distinct yet also overlapping, and this subject will explore the personal, political, programmatic and conceptual dimensions of theories and practice in all three areas.

Taking an interdisciplinary approach, this subject will explore how human rights have been invoked to challenge development practices that produce or exacerbate extreme poverty and how international development institutions like the World Bank and the United Nations Development Programme (UNDP) have incorporated human rights principles in their poverty alleviation initiatives. Throughout, this subject will take a historical and critical perspective, working with case studies to interrogate the efficacy of human rights practices to challenge the underlying geopolitical dynamics that produce and perpetuate global poverty. This subject will be grounded in the lived experiences of people in different contexts around the world, to localise the conceptual discussions within the dynamic realities of everyday life.

Principal topics include:

• Concepts of human rights
• Law and legal consciousness in everyday life
• Scope, distribution and socio-political dynamics of global poverty
• Questions of measuring development and monitoring economic and social change
• Representation and social mobilisation of human rights, development and poverty concerns.
• Overview of major international organisations charged with poverty alleviation (World Bank, International Monetary Fund (IMF), United Nations Development Program)
• Amartya Sen’s capabilities approach to human development
• History and theory of the right to development and rights-based development
• Concept of poverty as a human rights violation
• Human rights conditionalities on development projects (for example, related to economic management or social inclusion)
• The pragmatic use of rights rhetoric and tools to build social movements to fight poverty
• Thematic case studies on areas including health (focusing on HIV), gender equality, education, food security and civic participation in local and national decision-making processes.

This subject considers ways of reimagining the international human rights regime, which is under attack from many quarters. It is said to be ineffectual, hegemonic and ill-equipped for a world that is very different from that of the era in which it was devised, and reliant for its implementation upon outmoded forms of regulation. Another set of critiques focuses on groups at the margins of the international human rights system, including women, indigenous peoples and minority sexual groups, whose human rights are often breached.

This subject reviews these critiques and examines their explanatory force. It considers ways in which the international human rights system can be reconceived to be more effective, drawing on anthropological and socio-legal scholarship. It will focus, first, on the turn to quantification in the human rights field, especially the use of indicators, and whether this is likely to increase protection of human rights. Second, the course will discuss attempts to respond to ‘outsider’ critiques of the human rights system, including the drafting of specialised treaties and instruments. Third, the course will consider the relationship between the formal mechanisms of the human rights system and the mobilisation of human rights ideas and values by social movements and non-governmental organisation. It will examine the social and cultural processes by which international norms and laws become translated into local situations. A unique feature of this course is that it combines the perspectives of international law and legal anthropology in its approach to human rights.

Principal topics include:

• A review of the key mechanisms used to promote the treaty obligations that states have accepted and how these operate
• An examination of some of the major criticisms that have recently been directed at international human rights mechanisms by governments and other key actors
• An overview of the question of evaluating impact in this field, including consideration of the work of scholars who have sought to measure the effect of ratification of human rights instruments
• The development of an ‘indicator culture’ in the human rights field
• An understanding of the role that quantification plays in defining human rights and fostering compliance through increasing accountability
• A review of recent sustained critiques of the human rights regime by scholars such as Stephen Hopgood, Samuel Moyn, Eric Posner, Harri Englund and others
• A discussion of Third World, feminist and queer critiques of the international human rights system
• Analysis of specialised treaties and instruments responding to these critiques, including CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women), the Istanbul Convention on Domestic Violence and the Yogjakarta Principles
• An introduction to anthropological approaches to the international human rights system
• Examination of human rights in practice, focusing on the way these ideas are mobilised to deal with local issues such as gender violence and indigenous rights.

It is rare today to hear of an armed conflict in which there is not some discussion of the extent to which one or both sides of the conflict has engaged in sexual violence. Over the past 20 years, international NGOs and institutions alike have paid significant attention to sexual violence in conflict. They have attempted to address it through international humanitarian and criminal law, United Nations Security Council resolutions, and even international military intervention. This subject will critically consider the deployment of these various legal mechanisms to address sexual violence, and will consider some of the assumptions about sexual violence and international law that animate them. Because initially women’s human rights advocates were behind much of the advocacy, it will also consider the various views of feminism and gender that have become mainstreamed through their appeals to the strong arm of the State and of powerful international governmental alliances to bring an end to sexual violence. The lecturer, Professor Karen Engle has been academically engaged with these issues quite extensively over the past two decades.

Principal topics will include:

• Historical regulation of rape by international humanitarian law
• The history of the women’s human rights movement’s prioritisation of and engagement with the treatment of sexual violence in conflict
• The mobilisation of the occurrence of sexual violence to call for various forms of international intervention
• The international criminal legal treatment of sexual violence in conflict
• How might international law and politics respond to the perception that sexual violence is inherently shameful?

In 2000 the United Nations (UN) Security Council for the first time considered the impact of war on women through the adoption of Resolution 1325 on Women, Peace and Security (WPS). This has been followed by seven further resolutions, thereby creating an institutional agenda that encompasses women’s participation in conflict prevention and resolution, protection of women from sexual and gender-based violence in conflict, and humanitarian relief and recovery for survivors of sexual violence. The subject will critically examine the WPS agenda, its place in contemporary conflicts and its basis in international humanitarian law, international criminal law and human rights law.

The lecturer, Professor Christine Chinkin, has a long academic record in international law, especially the human rights of women. She is currently Director of the Centre for Women Peace and Security at the London School of Economics and has practical experience through advising UN and Council of Europe bodies and a House of Lords select committee on sexual violence in conflict, as well as having been a member of fact-finding missions in Gaza, Malawi, Mali and Colombia.

Principal topics include:

• The concepts of new wars and human security
• The evolution of the women, peace and security agenda
• The status of women, peace and security as a legal regime
• Women and war
• The four ‘pillars’ of women, peace and security.
• Participation of women in peace processes and peacekeeping operations
• Prevention of sexual and gender-based violence in conflict and in so-called peacetime
• Prevention of armed conflict
• Protection against sexual violence in conflict
• Post-conflict reconstruction
• Women peace, and security and countering violent extremism
• Implementation of WPS through national action plans
• Addressing sexual exploitation and abuse by peacekeepers

This subject examines the way that international law regulates women in both war and peace-building. It will study the way that legal principles position women in the areas of international humanitarian law, international criminal law and international human rights law. The subject will also investigate developments in the United Nations Security Council dealing with sexual violence in conflict and women’s participation in conflict resolution and post-conflict peace-building.

Principal topics include:

• An analysis of the way that international law depicts women in conflict, including as civilians, victims, survivors, refugees, widows, combatants and peace-makers
• The Geneva Conventions of 1949 and their 1977 Additional Protocols
• Human rights law relating to women’s rights during armed conflict and in its aftermath
• Accountability of the United Nations for the activities of peacekeeping forces
• International criminal law relating to women
• The impact of the United Nations Security Council ‘women, peace and security’ agenda
• The role played by international non-government organisations (NGOs)
• The challenges facing women in post-conflict peace-building.

The subject explores this Australian intellectual property regime in predominantly black-letter terms. It asks students to consider the doctrinal issues implicated by the various aspects of copyright law: subsistence, ownership, infringement, exceptions to infringement and remedies. Also integrated with the curriculum are moral and performers' rights, and the treatment of internet service provider liability as an intermediary between copyright owner and infringer. The subject is structured within an international framework, explaining the importance of treaty norms and with selective use of comparative law.

Principal topics include:

• The evolution and theory of the national and international copyright system
• The material protected by copyright
• The duration of protection
• The rights granted by copyright
• Infringement of copyright, including defences and available remedies
• Ownership, licensing and assignment of copyright
• Moral rights and their infringement
• Copyright law in international perspective.

Design plays a critical role in the production and marketing of goods. Adequate protection of designs is important in order to encourage the creation of innovative products and thus enhance the Australian economy. This subject is primarily concerned with the laws in Australia that protect designs and will cover the registered regimes for protecting designs under the Designs Act 2003 (Cth) and parts of the Designs Act 1906 (Cth), as well as the protection of designs as original artistic works under the Copyright Act 1968 (Cth). The first lecturer is a well-known intellectual property law academic and former barrister, while the second is a senior patent attorney with extensive experience in designs law and practice. This subject meets the Trans-Tasman IP Attorneys Board (TTIPAB) requirements for ‘Topic Group I: Designs Law’. It will also include coverage of the  relevant aspects of the laws of New Zealand on these matters.

Principal topics include:

• Registrable designs: definition of design and registrability requirements
• Application and registration procedures and Designs Office practice
• Duration of registration and removal procedures
• Registration, examination, certification and infringement
• Defences to, and remedies for, infringement
• Validity and infringement of designs registered under the Designs Act 1906 (Cth)
• Ownership, transfer and exploitation of design rights
• Rectification and correction of the Register
• Artistic works protected by copyright and the designs/copyright overlap
• Relationship of designs protection to innovation patents under the Patents Act 1990
• The treatment of registered designs under New Zealand law and the availability of copyright protection for designs under New Zealand law
• International conventions and the protection of designs.

This subject provides an outline of some of the more important or notable features of European intellectual property (IP) regimes and reform proposals, selected either for their unique nature or their comparative relevance to Australian law. The subject will deal with a variety of sources of European IP law, including: European Union (EU) Directives and Regulations on or relating to IP; non-EU IP treaties (such as the European Patent Convention), and domestic IP law in European countries, in particular the United Kingdom, Germany and France.

Principal topics will include:

• An overview of the European IP regime
• The European patent system under the European Patent Convention and the European unitary patent initiative
• Key features of European patent law: patentable subject matter (including the impacts of the 1998 EU Biotechnology Directive); claim construction, inventive step and sufficiency/claim support
• The EU supplementary protection certificate (SPC) system
• EU laws specifically protecting databases and software, and the ramifications of those protections upon copyright protection generally
• European legal protections of authors’ moral rights
• European graduated response initiatives directed at internet-based copyright infringement
• The registered and unregistered European Community designs regimes
• The relationship between European designs and artistic copyright protection
• European laws extending trade mark protection to mark dilution and unfair advantage
• Internet-related trade mark infringement in settings such as online marketplaces and search engines
• Trade mark issues relating to comparative advertising and parallel importation
• The interface between the European IP regime and European competition/free trade protections, in particular the question of exhaustion of rights within the EU.

Fundamentals of Intellectual Property provides a good introduction to intellectual property (IP) for students wishing to pursue more specialised graduate studies in this area. It also provides a general overview of IP law for Australian and non-Australian students who are seeking this as part of an overall commercial and trade law program.

The objective of this subject is to provide an introduction to, and general overview of, the various Australian legal regimes protecting IP. IP laws, including those with respect to patents, designs and copyright, are directed at the encouragement and protection of innovations in science, technology and cultural products. They also operate, through the laws of trade marks and unfair competition, to provide protection for the later stages of development at which these innovations are disseminated and marketed. There is a potential for conflict between these laws and competition laws, and this interface will be discussed, together with an introduction to the international framework of treaties under which the owners of IP rights (IPRs) from one country can seek protection in another.

Completion of the first day of this subject (Overview of Intellectual Property one day seminar) meets the requirements of the Trans-Tasman IP Attorneys Board (TTIPAB) for ‘Topic Group A2’.

Note: If you enrol in Fundamentals of Intellectual Property (LAWS90125), you do not need to enrol in Overview of Intellectual Property.

Principal topics include:

• Introduction to the concept of and rationales for IPRs
• Models used for the protection of IP (the patent model, the copyright model and variations of both)
• Patents for invention, including:
  • Registration process
  • Subject matter
  • Conditions for protection
  • Exclusive rights and infringement
  • Defences
  • Innovation patents
• Protection of confidential information and trade secrets under general law
• Registered designs
• Copyright and allied rights, including:
  • Subject matter protected - works and other subject matter
  • Conditions for protection
  • Duration
  • Exclusive rights
  • Exceptions
  • Licensing and exploitation
• Trade marks and unfair competition
  • Protection for unregistered marks and other indicia through common law and equity
  • Protection for registered marks
• Sui generis regimes of protection: geographic indications, plant breeder's rights, circuit layouts and other systems of protection  
• International treaty framework for IPRs
• IPRs and competition law.

This subject teaches students the fundamental principles and basic skills of drafting patent specifications. It does so through a combination of in-class instruction sessions on a range of topics, in-class drafting exercises with review sessions, and out-of-class drafting exercises with tutorial review sessions. Students are assessed by two practical assessment tasks, undertaken individually outside the classroom. Passing the subject will satisfy the knowledge requirements specified by the Trans-Tasman IP Attorneys Board (TTIPAB) for Topic Group G: Drafting patent specifications. The lecturers for this subject include a number of practising patent attorneys with substantial experience teaching drafting skills.

Principal topics include:

• History and nature of specifications and claims
• Approaches to claim drafting
• Interpreting claims
• Drafting basic claims
• Drafting product claims with reference to prior art
• Drafting process and method claims
• Preparing a description
• Consequences of drafting.

Intellectual property (IP) – how effectively it is protected and how it is balanced with other policy domains such as public health – occupies a central, if contested, place in international trade relations. From the mid 1980s, a growing perception that inadequate or unbalanced IP protection was undercutting the economic interests of major economies made disputation about IP inevitable. The resulting tensions were a critical factor behind the inclusion of IP standards in the World Trade Organization (WTO) system of multilateral trade law, in the form of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Rather than resolving disputes over IP protection through bilateral wrangling and unilateral pressure, the rule of law would be applied in a predictable, transparent and equitable way through the multilateral dispute settlement mechanism maintained by the WTO, building on the major conventions separately administered by the World Intellectual Property Organization (WIPO).

Yet recent years have seen a sharp rise in the conclusion of bilateral and regional trade and investment agreements that establish alternative or complementary sets of standards on IP and mechanisms to resolve IP disputes. The result is an intricate array of overlapping substantive standards and parallel forums for dispute settlement. This subject enables the student to navigate this complex legal landscape and to deal with its consequences from the point of view of dispute settlement practice, from the perspective of legal principle and public policy impact, and in terms of international governance and the management of trade and political relations. The lecturer offers insights from extensive experience as a senior official in both the WTO and WIPO, as an Australian official engaged in litigation and negotiation, and as a legal and policy analyst.

Principal topics include:

• A practical anatomy of international intellectual property conventions, standards and institutions: from the creation of the major multilateral systems within WIPO and the WTO, to the current trend towards bilateral and regional deals
• The political economy of international intellectual property: the economic, political and technological factors driving disputation over IP and the creation of competing dispute settlement mechanisms
• The core principles of international IP law: IP principles and the idea of 'balance', the preservation of 'space’ for domestic law and policy, and the integration of trade law and public policy principles into international IP law
• The distinctive features of international IP dispute settlement: cause of action, sources of law, remedies and challenges for treaty interpretation
• Dispute settlement practice and emerging TRIPS jurisprudence under the WTO: a survey of TRIPS disputes and the use of TRIPS in cross retaliation, and a close analysis of landmark disputes
• The evolving architecture of bilateral and regional trade and investment agreements covering IP: the practical implications for treaty interpretation, for the initiation, management and settlement of IP disputes in multiple fora, and for domestic law and policy
• Compliance and monitoring of compliance: the institutional mechanisms, and the sources of information for practitioners and government officials, for legal and policy analysts and for scholars.

Over the past two decades, the protection of intellectual property rights (IPRs) globally has become a major issue both for right holders and users, and one that has had profound implications in a number of important areas of public discourse, such as international trade, public health, education and research, national development and the promotion of biodiversity. This subject seeks to engage with all these issues, and begins with a discussion of the sources of international intellectual property (IP) law, including the principal IP treaties and the general architecture of the international IP system. It then considers a number of case studies where particular IP issues arise and where international solutions are presently being negotiated. It will also examine the growing tension between the territoriality of IPRs and the global scope of IP exploitation, considering how this clash plays out in the key area of private international law. Both lecturers have had extensive experience in international intellectual property matters, and bring to the subject both academic and practical perspectives that add greatly to its interest and relevance.

This subject consists of a survey of the economic, legal and political elements and forces that shape the international IP system.

Principal topics include:

• Introduction to the international IP system, including the main producers and owners of IP, the institutional architecture and the treaty system, including those administered by the World Intellectual Property Organization and the World Trade Organization (notably the Agreement on Trade-Related Aspects of Intellectual Property Rights), and the emergence of bilateral and regional trade and investment protection treaties that have an impact on the protection of IP rights
• Instruments and strategies for obtaining protection internationally—the Patent Cooperation Treaty, Madrid System, Hague System and regional systems
• Human rights, IP and the development agenda
• IPRs and public health
• IPRs and food security
• Biotechnology, access to genetic resources and traditional knowledge
• Access to knowledge
• The protection of names, marks and other identifiers and content, with particular reference to the internet
• Dispute settlement and private international law issues.

Reading and interpreting patent specifications is a central part of a patent attorney's daily practice. It is also a critical feature of any patent litigation where both sides will be competing for alternative interpretations that favour their client. This subject is intended to hone these skills of analysis and interpretation, working on the basic legal principles that students seeking Trans-Tasman IP Attorneys Board (TTIPAB)accreditation have already obtained through their study of patent law and patent practice. It is taught by experienced attorneys and litigators, and meets the TTIPAB requirements for Topic Group H.

This subject will be conducted with a number of case studies carried out by a team of practitioners to develop skills in the application of the rules of interpretation to patent specifications and in the application of Australian and New Zealand patent laws.

Principal topics include:

• The validity of an Australian or New Zealand patent or patent application under the provisions of Australian and New Zealand laws concerned with support, sufficiency of description and utility
• The validity of an Australian and New Zealand patent or patent application in the light of prior art information supplied, including through prior published specifications and prior user
• The scope for making amendments of patent applications
• The infringement of an Australian or New Zealand patent by a competitor's product or process.

Technology transfer is a term used to describe the process by which skills, knowledge and intellectual property rights are moved from one person or organisation to another. Governments and businesses around the world now recognise the fundamental importance of innovation and the commercialisation of new technologies to economic prosperity. Here, technology transfer and in particular intellectual property licensing have a vital role. This subject looks at the legal and commercial issues relevant to technology transfer, with a focus on intellectual property licensing and the negotiation of licence agreements. The subject also includes the licensing of trade marks and software.

The subject lecturers have worked in the field of technology transfer for many years and bring practical perspectives to the topics covered.

Principal topics include:

• Licensing of:
  • Patents and know-how
  • Trade marks, including franchise agreements
  • Copyright, including computer software
• Impact of competition laws
• Payments and taxes
• Contractual and commercial issues
• Negotiation of licence agreements.

For at least 400 years, patent law has been the primary regulatory mechanism for optimising innovation. With more than two million patent applications filed annually around the world, the patent system is both highly complex and of great economic importance. This subject provides the foundational knowledge necessary for a professional understanding of patent law and the patent system. It does so through a combination of instructional sessions and hands-on workshop sessions. These provide students with a detailed understanding of the principles of patent law, with a particular focus on the requirements for the grant of a valid patent, and for infringement of a patent, under Australian and New Zealand law. In the workshop sessions, students apply the principles of patent validity and patent infringement to actual prior art, patent claims and infringing embodiments. Successful completion of this subject satisfies the knowledge requirements specified by the Trans-Tasman IP Attorneys Board (TTIPAB) for Topic Group E: Patent Law.

Principal topics include:

• Rationales for and alternatives to patents
• Trade secrets protection (breach of confidence)
• Patentable subject matter
• Requirements for patentability – novelty, inventive step and utility
• Specification requirements – clarity, support, disclosure and best method
• Fraud, false suggestion and misrepresentation
• Infringement, defences and remedies
• Inventorship, entitlement and ownership
• Duration and commercialisation of patent rights
• Future of the patent system.

This subject follows on from Patent Law (which is a prerequisite) and provides students with the basic knowledge and skills required for the filing, prosecution and maintenance of an application for protection under the Patents Act 1990 (Cth) for both local and international inventions. The lecturers are an expert team of experienced patent attorneys and the subject meets the Trans-Tasman IP Attorneys Board (TTIPAB) requirements for ‘Topic Group F: Patent Practice’.

This subject will include relevant aspects of New Zealand practice.

Principal topics include:

• Patent legislation and practice in Australia
• Patents Acts of 1952 and 1990: standard patents; innovation patents
• Kinds of patent application: provisional, complete, standard, divisional, patent of addition, convention and innovation
• Patent application filing and prosecution: searching, filing, examination, opposition, grounds, practice and procedures, grant and re-examination
• Amendment of patent specifications and other documents: allowable amendments, clerical errors and obvious mistakes
• Duration of patent protection: continuation and renewal fee requirements, lapsing and cessation, restoration of rights and extensions of term for pharmaceutical patents
• The Register of Patents: recordal of assignments, licences, mortgages and changes of name and amendments to the Register
• International conventions and agreements
• Patentability overseas
• Basic considerations of United States and European patent law
• Applications under the Patent Cooperation Treaty, filing applications and entry of national and regional phase
• Circuit layouts legislation (Circuit Layouts Act 1989 (Cth))
• Plant breeder's rights legislation (Plant Breeder‘s Rights Act 1994 (Cth))
• New Zealand patent practice (relevant issues).

This subject builds on the material covered in the Trade Marks and Unfair Competition subject. Trade Mark Practice is primarily concerned with the procedures and practices of the Australian Trade Marks Office in obtaining and maintaining registered trademarks and relevant aspects of New Zealand trade mark procedures and practice. This subject is thus particularly valuable for students wishing to prosecute trade mark applications through those offices. The rights, privileges and responsibilities of a patent or trade mark attorney are also covered in the wider context of attorneys’ professional conduct. The lecturers in the subject have extensive experience in the obtaining of trade mark registrations and the subject meets the Trans-Tasman IP Attorneys Board (TTIPAB) requirements for ‘Topic Groups’ B and D.

The emphasis of this subject is on the documentation, procedures and practice of the Australian Trade Marks Office and relevant aspects of New Zealand trade marks procedure and practice.

Principal topics include:

• The respective national offices, registers and official journals
• Determining the availability of a trade mark for use and registration, searching the Trade Marks Office database and other search options
• Applications for registration, including Madrid Protocol, Convention, divisional and series applications
• Examination and acceptance of applications
• Opposition to registration
• Initiating and opposing applications to remove a trade mark for non-use
• Amendment of applications and other documents; revocation post-registration
• Obtaining registration and renewal of registration
• Obtaining extensions of time
• New Zealand trade mark practice (relevant issues)
• Exploitation, including assignments and registration of security interests
• Parallel importations and Customs seizure
• International conventions and initiatives, and protecting trade marks in foreign countries
• The rights, privileges and professional responsibilities of a patent or trade mark attorney.

This subject is concerned with the laws in Australia that protect trade marks and relevant aspects of New Zealand law on this topic. Trade marks play a pivotal role in the marketing of goods and services, and generally are one of a trader‘s most valuable assets. The protection of trade marks is thus of critical importance to all traders but is also important to consumers, who rely on the information conveyed by trade marks. This subject concentrates on the trade mark protection regime provided by the Trade Marks Act 1995 (Cth), and  involves a detailed study of the provisions of this Acts and related case law, together with relevant aspects of the corresponding New Zealand laws and cases. The action for passing-off and actions for contravention of the Australian Consumer Law provisions in the Competition and Consumer Act 2010 (Cth), and corresponding New Zealand statutory provisions, proscribing misleading and deceptive conduct are also covered.

This subject meets the Trans-Tasman IP Attorneys Board (TTIPAB) requirements for ‘Topic Group C’.

Professor Robert Burrell is an experienced intellectual property academic and a registered trade mark attorney with extensive experience of Australian trade marks law and practice.  Lindy Golding is a former partner in a leading London law firm who specialised in intellectual property matters, including copyright and trade marks.

Principal topics include:

• The function of trade marks
• Registration of trade marks under Australian and New Zealand laws
• Infringement, defences and remedies
• Licensing and assignment, and other exploitation of trade marks
• Removal and cancellation of registration
• Management and maintenance of trade marks
• The action for passing-off and actions for contravention of the Australian Consumer Law provisions in the Competition and Consumer Act 2010 (Cth) proscribing misleading and deceptive conduct (and the corresponding provisions under New Zealand law)
• Other protections for name and insignia, including the domain name system.

The subject will cover the relationship of statutory to constitutional norms, particularly with respect to US copyright’s accommodation of freedom of expression. The copyright 'Subject Matter' topic will include applied art and computer programs – works whose protection courts have not easily resolved. Ownership will focus on the peculiarities of the US works made for hire doctrine. The 'Formalities' topic will explore the extent to which formalities still condition the exercise of copyright in the US. The 'Exclusive Rights' topic will include analysis of the scope of rights in the online environment. The 'Exceptions' topic will concentrate on 'fair use', and will consider its 'portability' particularly in light of calls to incorporate 'fair use' into other countries’ copyright laws, including Australia’s. Remedies will address enforcement, including the liability of online service providers

Jane C Ginsburg is the Morton L Janklow Professor of Literary and Artistic Property Law at Columbia University in New York City, where she teaches copyright law, and is the author or co-author of many books and articles on US and international copyright law.

Principal topics include:

• Constitutional foundations of US copyright
• Subject matter of copyright
• Ownership of copyright
• Formalities
• Exclusive rights
• Exceptions
• Remedies.

Intellectual property is an increasingly contested field – both nationally and internationally. Different states’ intellectual property laws manifest different attitudes towards the defining policy tension in this field of law: how to encourage and reward innovative activity, while ensuring that intellectual property does not raise intolerable barriers to market entry or impede fundamental rights and freedoms. This subject provides an overview of key United States intellectual property doctrines, statutes and principles, and will help students understand some of the ways the United States addresses these issues through its intellectual property laws. Before taking up his joint positions of Professor of Law at Melbourne Law School and Chair in Private Law at Victoria University, Professor Austin directed the intellectual property program at the University of Arizona College of Law.

Principal topics will include:

• Copyright protection for data-rich products
• Prohibitions on copyright and trade mark protections for ‘useful articles’
• Work for hire rules in copyright
• The ‘fair use’ exception to copyright
• Indirect liability for copyright infringement
• Establishment of trade mark rights under state and federal laws, including ‘intent to use’ applications
• Trade mark infringement
• Forms of abandonment of trade marks, including by naked licensing
• Patentable subject matter and standards for patentability
• Scope of patent and trade secret rights
• Remedies.

This subject provides an in-depth overview of the fundamental principles of US patent law and practice. It is taught by a distinguished former US judge and practitioner who has had extensive practical experience in patent litigation in that country. It will be a subject of immediate interest and benefit to patent attorneys and lawyers who deal regularly with US-based clients.

Principal topics include:

• Patent eligibility, with particular emphasis on biotech and software patents
• Utility
• Anticipation and novelty (both before and under the America Invents Act)
• Non-obviousness, including secondary considerations and specific issues concerning chemical and biotech patents
• The specification and objective disclosure doctrines, claims and indefiniteness
• Prosecution, inventorship, inequitable conduct and post-grant procedures
• Infringement (literal infringement, doctrine of equivalents and indirect infringement)
• Equitable defences and remedies (injunctions, damages).

This subject will examine the economic and legal issues facing developing countries in their engagement within the World Trade Organization (WTO). A central organising theme will be the evolving theory and practice relating to the role of economic liberalisation in the developmental processes of these countries. The lecturer has extensive experience in the area in research and teaching and has also acted as a consultant to a variety of governmental and intergovernmental agencies.

Principal topics will include:

• History of developing country engagement in the GATT–WTO
• Evolving theory on trade and development
• GATT legal framework: pre-Uruguay Round
• Overview of Uruguay Round and WTO legal framework
• Agriculture
• Trade-Related Intellectual Property Rights (TRIPS)
• Trade remedies: anti-dumping, countervailing duties and safeguards
• The ‘fair trade’ debate: environmental and labour standards
• The ‘non-WTO’ Singapore issue of foreign investment
• The developmental implications of bilateralism and regionalism
• The future: the Doha Ministerial Declaration.

International trade is being transformed by the globalisation of the internet and the ability to move data across borders. Small businesses and firms in developing countries are using internet platforms such as eBay and Alibaba to engage in international trade. Software, music and books that used to be traded physically are now being transmitted digitally across borders; lawyers, consultants and other professional services are using the internet to reach new markets. Data analytics and cloud computing have become essential tools for firms in domestic and international markets.

This subject will examine the impact of the internet and global data flows on international trade. Students will learn about the varied and innovative ways that the internet and data enable international economic activity. Students will look at how government regulation in areas such as privacy and national security affects digital trade and will examine the balance between achieving these goals and maximising opportunities for trade, growth and jobs. Students will learn about the extent to which international trade rules of the World Trade Organization (WTO) and free trade agreements such as the Trans-Pacific Partnership Agreement support an open internet and global data flows; will identify gaps in law and practice; and will analyse where new global norms and rules are needed. Special topics covered may include: the opportunities of digital trade for developing countries and small and medium enterprises (SMEs); challenges posed by the 'Internet of Things' and privacy regulation; and digital trade and national security.

Joshua P Meltzer is a Senior Fellow at the Brookings Institution in Washington DC and adjunct professor at the Johns Hopkins School for Advanced International Studies where he teaches international trade law. He is a leading scholar on digital trade issues, consults governments, the World Bank and the World Economic Forum and was appointed an expert witness in digital trade and privacy litigation.

Principal topics include:

• Overview of the globalisation of the internet including global trends in internet access and use
• The economics of the internet - students will learn how internet access and global data flows are improving productivity, enabling innovation and expanding opportunities for global engagement
• What is the impact of the internet and data flows on international trade? This will include the role of digital platforms and the increasing importance of digital services trade
• What are the barriers to digital trade, who is erecting them and why? Students will learn about the regulatory challenges to digital trade in areas of consumer protection, financial and privacy laws and the different approaches being taken in the European Union, the United States and Australia, and consider how to achieve domestic regulatory goals while maximising digital trade
• Applying international trade law to digital trade issues and identifying the legal gaps - students will analyse where existing international trade rules apply to digital trade issues. This will include analysis of WTO agreements and cases as well as new trade rules in free trade agreements. Gaps in trade law will be identified and students will consider whether new trade rules and norms are needed and where they can be negotiated.

The International Monetary Fund (IMF) and the World Bank are arguably the two least understood and most controversial international organisations. Both are key components of the international financial system and significant players in the worldwide response to the Global Financial Crisis. They also play a vital role in national economies (as seen for example in the IMF’s involvement in the Euro-zone rescue and its analytical work on the historic rise in sovereign debt). This subject will focus on the IMF and World Bank while also providing students with a sophisticated understanding of the broader international financial system and its problems. 

It is taught by Katharine Christopherson, Assistant General Counsel in the IMF Legal Department, and Danielle Malek Roosa, Senior Counsel at the World Bank. The subject provides a valuable insider’s perspective on the ‘Bretton Woods‘ institutions.

This subject examines the global financial order, with a strong focus on the international monetary system and the IMF.

Principal topics include:

• Key institutions of the global financial order, namely the IMF and the World Bank, including their history, powers, policies, practices and political and economic rationale
• The role of these institutions within the globalisation debate
• The linkages between these institutions and other institutions, including the World Trade Organization (WTO)
• The IMF, including its Articles of Agreement, IMF surveillance and conditionality
• The role of the IMF in the prevention and resolution of financial crises
• The institutions of the World Bank Group, their Articles of Agreement and their respective roles in promoting development
• The role of human rights and other ‘political issues’ in the work of the World Bank
• Current challenges to the IMF and the World Bank, and proposals for their reform.

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.

Newspaper headlines frequently concern global economic issues, from trade disputes between countries and investment claims by foreign investors against sovereign states, to countries facing balance-of-payments crises and seeking assistance from the International Monetary Fund (IMF). This subject examines the law governing global economic issues. It is designed both as a comprehensive introduction in its own right to this important field, as well as a foundation for further exploration through specialist subjects in the curriculum. It begins with a historical and theoretical background to the field before turning to focus on international trade law, particularly the rules and dispute settlement procedures of the World Trade Organization (WTO). It then discusses contemporary developments in international trade law and policy, including the negotiations for regional or bilateral preferential trade agreements. The subject then considers international investment law, examining key substantive obligations relating to investor protection and investor-state dispute settlement mechanisms (particularly through the International Centre for Settlement of Investment Disputes (ICSID)). Finally, the subject provides an introduction to the lending policies and practices of international financial institutions, particularly the IMF and the World Bank.

Principal topics include:

• Nature, evolution and context of international economic law
• The law of the WTO
• Dispute settlement in the WTO
• International investment law
• Investor-state arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention
• International financial institutions (particularly the IMF and the World Bank).

International investment law regulates the entry and operation of foreign investment and is one of the fastest-growing fields of public international law. This subject begins by tracing the historical, political and economic causes for the protection of foreign investment across custom, bilateral and regional investment treaties. It then focuses on the unique system of dispute resolution in this field, which gives private (foreign) actors the right to pursue claims for damages against states. This subject explores a series of case studies to evaluate the impact of investment law across a range of core values, including public health, environmental regulation and the protection of human rights.

Principal topics include:

• Nature, evolution and context of international investment law
• Overview of bilateral investment treaties (BITs), the North American Free Trade Agreement (NAFTA), the Energy Charter Treaty and parts of the World Trade Organization (WTO)
• Scope of protection: definition of ‘investor’ and ‘investment‘
• Relative obligations of non-discrimination: most-favored-nation (MFN) and national treatment
• Obligation to accord foreign investors ‘fair and equitable treatment‘
• Expropriation and the quantification of compensation
• Contract claims versus treaty claims: the ‘umbrella’ clause
• Arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention.

This subject is at its core is an advanced common law treatment of international trade law dealing with the import and export of goods by sea. Apart from CIF, FOB and related matters, it deals with bankers’ letters of credit financing such sales. Approximately 20 per cent of the course is also dedicated to the United Nations Convention on the International Sale of Goods 1980, with emphasis on the differences between this instrument and the common law approach. This subject deals with the international sale of goods, primarily with respect to the sale of commodities, where the interplay between sale as a commercial activity and sale as a speculative instrument can most acutely be observed. Uniformity is an important theme is this subject, whether it is based upon the choice of a standard form contract and the same applicable national law, or the uniformity that is manifest in the national law of the United Nations Convention on the International Sale of Goods 1980.

Principal topics include:

• The passing of title to, and risk in, the goods
• Allocation of responsibility for arranging carriage and insurance
• The relationship between the carriage and insurance contracts and the sale contract
• Export and import licences
• Bills of lading and the network of contracts that work to effect international sales
• How and when payment is to be made for the goods
• The International Chamber of Commerce Incoterms 2010
• The application and content of the UN Convention on the International Sales of Goods (CISG)
• Non-conformity of goods and the buyer’s remedies
• Documentary letters of credit and documentary collection
• Uniform Customs and Practice for Documentary Credits 2007 (UCP 600).