- CRICOS Code: 073303C
What will I study?
Taught at graduate level, the Melbourne JD equips you with the skills and knowledge to take a leading role in contemporary legal practice, the business world, government and community organisations.
Gain the core skills and practical learning opportunities for a wide range of legal and professional careers. Build a network of student peers, MLS alumni and mentors while also gaining the opportunity to study overseas.
The JD course comprises 24 subjects, including 16 compulsory subjects required for admission to legal practice within Australia.
You have the flexibility to pursue particular areas of interest through elective subject selection. Offering more than 45 electives each year, the JD program continually evolves to reflect current developments in law and legal practice.
Special interest areas
You also have the opportunity to undertake an elective from the Melbourne Law Masters. Here you will share a classroom with practitioners from Australia's premier organisations and institutions, in special interest areas such as international and human rights law.
Single subject study for overseas qualified applicants
A limited number of subjects are available as single subjects for overseas qualified applicants from a recognised institution who hold an academic qualification in law (LLB or equivalent). Single subjects are not available to students with an Australian qualification.
Sample course plan
View some sample course plans to help you select subjects that will meet the requirements for this degree.
Sample course plan - Standard 3 year plan
Sample course plan - Extended 3.5 year plan
Sample course plan - Extended 4 year plan
Sample course plan - Accelerated 2.5 year plan
Explore this course
Explore the subjects you could choose as part of this degree.
- Administrative Law12.5
Administrative law regulates the relationship between the state and its people, in other words, the relationship between the government and the governed. In particular, it regulates the powers and procedures of the executive branch of government and establishes the mechanisms for ensuring legality, transparency and accountability in executive decision-making. This subject completes the core curriculum’s examination of the legal framework of government in Australia. In doing so, it builds on and assumes the knowledge gained in all earlier compulsory subjects especially LAWS50024 Principles of Public Law and LAWS50028 Constitutional Law.
By providing students with a grounding in the key elements of Australian administrative law, this subject will assist students to think critically about government administration in the context of privatisation, security pressures, and the adoption of human rights protection. The study of administrative law will will also enable advanced development of student skills in statutory interpretation, in the particularly challenging context of administrative law.
Matters covered include:
- Development of executive government and administrative law;
- Types of executive action, including the concept of discretion; and
- The functions of administrative law in regulating executive power.
- Accountability for the exercise of executive power:
- The scrutiny of delegated legislation;
- Access to information;
- Reasons for administrative decisions;
- Non-adjudicative review: Parliament, the Ombudsman and others;
- Tribunals and merits review; and
- The impact of human rights protection on government powers and administrative law.
- Judicial review of administrative decisions:
- Avenues of judicial review:
- Commonwealth decisions: the ADJR Act; the Constitution; and the Judiciary Act; and
- State decisions: O56, statutory ‘appeal’ provisions and the Administrative Law Act.
- The primary judicial review procedures;
- Standing to bring judicial review;
- The concept of jurisdictional error;
- Judicial review grounds;
- Remedies and the consequences of unlawful decisions; and
- Excluding/limiting judicial review.
- Avenues of judicial review:
- Constitutional Law12.5
This subject continues the analysis of the laws establishing and regulating the Australian state that began in LAWS50024 Principles of Public Law and that will continue in LAWS50032 Administrative Law. It is structured around the fundamental principles of Australian public law – constitutionalism, representative democracy, the separation of powers, federalism and individual rights – and uses them to examine more closely the institutions of Australian government – the courts, legislatures and the executive. (The examination of the executive branch and the principles of responsible government are taken further in Administrative Law).
Topics covered include:
- Introduction to Australian constitutions and to constitutional law;
- Representative Democracy:
- Composition, powers and procedures of Australian Parliaments and their constituent chambers; and
- Political rights and freedoms.
- Separation of powers:
- Legislature and Executive; and
- Judicial power.
- Australian Federalism:
- Key features of the Australian federation;
- Inconsistency of Commonwealth and State law;
- The federal division of legislative power, including the scope of state legislative power and, in relation to federal legislative power, types of power, interpretation, characterisation, incidental power, selected heads of power for detailed study;
- The federal division of executive power;
- The federal division of judicial power including the concept of federal jurisdiction;
- Governmental and inter-governmental immunities: statutory interpretation and constitutional principles; and
- Economic union: finance, trade and free movement in the Australian federal system.
- Express rights and freedoms.
This subject studies:
- the content of contracts;
- invalidating factors in contract formation; and
- the termination of contracts.
The study of contract builds on the foundations laid in LAWS50026 Obligations, and includes express terms and implied terms. The study of termination includes termination for breach, for failure of condition and by frustration, and includes some consideration of the proprietary consequences of contracts. The study of invalidating factors includes misinformation (mistake, misrepresentation, misleading conduct), abuse of power (duress, undue influence, third party impropriety, unconscionable dealing, and unconscionable conduct) and illegality.
- Corporations Law12.5
This subject is designed to provide students with an understanding of the fundamental characteristics of companies and the legal principles that regulate the establishment, management and dissolution of companies in Australia. The subject is organised around 10 core concepts:
- Introduction to companies and the regulatory scheme;
- Incorporation and its effects;
- Managing companies;
- Duties and liabilities of directors and officers – framework of duties, duty to act in good faith and duty to act for a proper purpose;
- Duties and liabilities of directors and officers – duty of care;
- Duties and liabilities of directors and officers – loyalty;
- Shareholder actions;
- Corporate liability;
- Share capital; and
- Introduction to corporate insolvency.
Particular emphasis is placed in this subject on the management and control of companies. This necessarily involves an exploration of two key questions:
- What are the legal responsibilities of those persons - directors and other officers - entrusted with the oversight and management of companies?
- What can (in particular, minority or non-controlling) shareholders do to protect their interests in a company?
These questions are derived from the overwhelming concern of scholarship in the field of company law, which is to investigate the nature and ramifications of the relationships between those who manage or control companies, those who have supplied capital to companies and those who otherwise contract with companies.
- Criminal Law and Procedure12.5
Criminal Law and Procedure
There are many ways in which to construct the field of criminal law: it is related to public law in as much as it concerns the relation between the state and the citizen in democratic societies; it is related to the law of obligations (contracts and torts) but is concerned with public rather than private obligations; and it is related to legal theory in as much as it concerns the nature of the law that attributes responsibility. With this in mind, the field of criminal law is typically divided into substantive criminal law (the definition, prohibition and regulation of criminal activity by law) and criminal procedure (the processes, rules and principles of law governing the institutions of investigation, prosecution, trial and appeal within criminal jurisdictions). The central question is thus the question of attribution of responsibility.
The subject's approach is to emphasise the breadth of offences in the statute book and decision-making throughout the criminal justice system, including the role of courts in interpreting offence provisions, developing general doctrines and managing individual cases. These topics are developed through in-depth discussion of particular case studies (of specific offences, criminal justice policy debates, theoretical frameworks and/or contemporary or historical instances of criminal law). In doing so, the overall concern is to draw out the links and disjunctions within criminal law, between criminal law and other areas of law and between law and other fields of social regulation.
The specific topics covered include:
- The formal structure of substantive criminal law, including the analysis of offences in terms of elements and the application of principles of statutory interpretation to offence provisions;
- The institutional arrangements of criminal procedure and their respective rationales, including the mechanisms for judicial and political control of the outcomes of those arrangements;
- Substantive offences – includes a selection of offences against the person and offences against property, as well as detailed studies of offences that have been the subject of critical debate or law reform efforts;
- Defences, including both defences that are generally applicable to offences and offence-specific exculpatory regimes; and
- Modes of criminal responsibility, including extensions of criminal responsibility, whether achieved through novel offence forms or general doctrines of criminal law.
In each instance, the subject addresses Australian criminal law, exploring the links and differences between the various domestic regimes and their place within comparative jurisdictions, whether local, foreign or international.
- Disputes and Ethics12.5
Disputes and Ethics
This subject introduces students to the theory and practice of civil dispute resolution and professional legal ethics through the medium of a reasonably complex civil action. Using a mix of face-to-face, online delivery, and independent learning, students will develop a critical understanding of the operation of three key dispute resolution processes, namely, negotiation, mediation and litigation. They will gain an appreciation of the role of lawyers in assisting the resolution of legal disputes, in terms of the professional skills, ethical responsibilities and legal obligations involved, including an understanding of duties to the client, to third parties involved in dispute resolution processes, to the administration of justice, and to the law itself. Through both their experiences in running the civil action, and engagement with the doctrinal, socio-legal and jurisprudential literature on lawyers, judges and dispute resolution, students will also be enabled to reflect deeply on the values, processes and outcomes of civil dispute resolution and settlement.
- Equity and Trusts12.5
Equity and Trusts
The subject will enable students to develop a broad and critical understanding of equity and trusts, with a focus on the law of trusts. We will first consider the nature of equitable doctrine more broadly before focusing on what a trust is and what functions it performs in modern Australian society. We will examine in detail the rules and principles governing the validity of express trusts. We will also consider trusts for charitable and non-charitable purposes, asking whether the law relating to charitable trusts is in need of reform. We will look at the range of fiduciary relationships recognised in Australia, including the trustee – beneficiary relationship. We will examine the duties owed by fiduciaries, including the fiduciary and non-fiduciary duties owned by trustees. We will consider resulting and constructive trusts, before finally exploring equitable remedies.
Equity and Trusts builds on the foundational knowledge of equity and trusts that students will have acquired from the compulsory subjects LAWS50026 Obligations, LAWS50029 Contracts and LAWS50030 Property. The subject emphasises contemporary applications of the rules, principles and remedies of equity. It also explores issues that are presently unresolved and the subject of contention.
- Evidence and Proof12.5
Evidence and Proof
Evidence and Proof offers a detailed exploration of how facts are analysed in legal settings, giving equal attention to the way that lawyers think about and communicate factual issues and the rules that regulate how courts resolve factual disputes. The subject provides a foundation for understanding both the rules that regulate the curial resolution of factual disagreements and the way that facts are approached in legal practice and in everyday life.
The core of the subject is the study of mental processes used to explore and resolve factual issues. Specific topics addressed are the development of a theory of the case and a description of inferences that can be used to reason from the evidence to the case. A number of methods for communicating factual analysis, including the use of software, may be studied, with an emphasis on both technical accuracy and the production of useful, readable analysis.
The subject will then explore the main rules that regulate (or purport to regulate) these mental processes (and related physical processes, such as the testimony of witnesses and the admission of documents and real evidence) when factual disputes are resolved by courts. The regulatory topics, comprising the central components of the law of evidence, include relevance, discretionary exclusion; the hearsay rule and its exceptions; the opinion rule and the regulation of expert evidence; and the credibility rule. The subject will also consider the rules that impact on the proof of criminal charges, including the rules on evidence of the defendant’s character and other misconduct; the admissibility of admissions; and the law of criminal investigations. The classes will emphasise the application of these rules to complex, realistic facts and the development of skills to describe the impact of legal regulation on factual arguments that would otherwise be available.
Throughout, the subject will explore the rationales for the rules and practices that surround legal fact-finding, as well as the alternative approaches available from comparative jurisdictions or proposed as law reforms. Students will be challenged to consider not only the limits of legal regulation, but also the limits of logical fact-finding, as a means of providing justice (and, in particular, avoiding miscarriages of justice) in a transparent, accountable, efficient and effective manner.
- Legal Method and Reasoning12.5
Legal Method and Reasoning
In this foundational subject, students will develop a critical understanding of the core elements of legal method and reasoning in Australia's common law legal system. Students in Legal Method and Reasoning will analyse the principal sources of law and the functions they perform in modern Australian society. The relationship between sources of law will be explored in depth. Contemporary debates on common law method and the ways in which different sources of law have evolved also will be explored.
Methodological issues will be considered in substantive contexts which give students an opportunity to develop an understanding of the social role of law. Throughout this intensively taught subject, students will critically interrogate whether or not these sources of law, the institutions from which they are derived and the methodologies employed to develop binding rules and principles of law are in need of reform.
Students will be taught in highly interactive, discussion-oriented classes. Assessment tasks will be designed to give students detailed, formative feedback on the skills they have acquired in the subject.
Legal Method and Reasoning's emphasis is on the contemporary application of the rules and principles governing how the common law and statutory law operate. Given its foundational subject matter, this subject will prepare students for the compulsory subjects they undertake in their first full semester of studies.
The principal topics which are canvassed in depth include:
- Analysis of case law, with a focus on significant complex scenarios using common law reasoning;
- critical exploration of the concept and use of precedent;
- examination of the progressive evolution of common law doctrine and the emergence of new principles;
- analysis of statutes, in practical, contemporary settings;
- critical exploration of statutory interpretation, with an emphasis on the use of interpretation legislation, the purposive approach and extrinsic materials ;
- the relationship between statutes and case-law and between different statutes; and
- presumptions in statutory interpretation, including the principle of legality.
- Legal Research12.5
This subject is a core element of the JD degree. It provides students in their final year with a capstone supervised research experience. It does so through supervised research seminars or structured projects, generally offered in a small group setting. Students will have the opportunity to work closely with a member of the academic staff in pursuing a particular research interest. In each semester, a range of seminars and projects will be offered. Some may have special entry requirements and enrolment limits. Each seminar or project will include a research skills component and seminar or project-based supervision on a legal issue.
- Legal Theory12.5
Legal Theory examines the nature of law, its role in society, and its relationship to morality and politics.
The questions we investigate have productive historical and conceptual traditions but no settled answers, and students will be encouraged to critically evaluate their own and others’ theories and arguments. To this end, the subject will examine a range of approaches, and assist students to further develop skills in critical analysis, reasoning and argument. The course enables students to develop and evaluate their thinking about a number of theoretical questions, drawing on a range of conceptual approaches to the study of law.
In any one year, the specific topics to be studied in Legal Theory will be drawn from jurisprudence; law, society and culture; authority, politics and rule of law; or law, morality and ethics. These topics will be explored in the context of the plural traditions of legal theory, and by way of examples from debates about the character and role of law in society, both nationally and internationally.
This subject builds on skills introduced in the foundation subject Legal Method and Reasoning, both in continuing to develop skills in the close reading and critical analysis of cases and in the interpretation of legislation. The substantive content of the subject considers the nature and foundations of the law of obligations through the study of four categories of private law obligation:
- Obligations arising from exchange transactions (contracts);
- The obligation not to mislead or deceive in trade or commerce (misleading conduct);
- The obligation not to cause harm through inconsistent conduct (estoppel); and
- The obligation to restore unjust gains (restitution or unjust enrichment).
Topics to be examined in detail will include:
- The nature of private law obligations and the relationship between obligations and property;
- The nature and foundations of contractual obligations;
- The formation of contracts (the requirements of agreement, consideration, intention to create legal relations, certainty and capacity);
- Formalities and the creation of equitable interests in property;
- The doctrine of privity (by whom and against whom contractual obligations are enforceable);
- The statutory wrong of misleading or deceptive conduct in trade or commerce;
- The principles of estoppel (the nature of equity, equitable and common law estoppel and the creation of property interests by way of estoppel); and
- The law of unjust enrichment (the nature of the law of restitution, money claims, claims in respect of services and defences).
- Principles of Public Law12.5
Principles of Public Law
Principles of Public Law offers a foundation understanding of the fundamental principles of both domestic and international public law, in a manner that integrates the two as far as possible, to reflect their increasing interdependence in conditions of internationalisation and globalisation.
The subject will canvass the manner in which power is organised within a state; the framework of international law within which states operate; and the relations between people and states, from the standpoint of both domestic and international law. It will thus deal with institutions of government and their operation; principles and procedures for the protection of human rights; the sources of international and domestic law; and the relationship between them. The subject will seek to explain how the principles of public law came to take their current form; to encourage critical evaluation of them, from the standpoint of both theory and practice; and to identify evolutionary trends and forces for change.
The subject is primarily concerned with the development and application of the principles of public law in the context of Australia. Nevertheless, the curriculum will deliberately draw on experience elsewhere, particularly (although not exclusively) in other common law legal systems. The subject-matter will be illustrated throughout by reference to contemporary issues, both to aid understanding and to encourage students to develop an informed view on questions of current importance. It will provide a basis on which subsequent subjects may build, including the compulsory subjects Constitutional Law and Administrative Law and the optional but popular subject Public International Law.
Finally, the subject will contribute to the development of the legal and generic skills of the students enrolled in it. It will build on the material covered in Legal Method and Research with respect to case analysis, statutory interpretation, legal problem solving and the communication of legal ideas in written and spoken form. It will take special responsibility for the development of skills in relation to the understanding and application of statutes, which in any event is integral to the subject matter of public law.
This subject introduces students to the conceptual framework for understanding the principles of real and personal property and examines the role of law in defining and regulating proprietary relationships. The major substantive focus is on Australian land law.
- The concept of property in diverse social, economic and political contexts including Indigenous land interests, common law, international law and intellectual property;
- The boundaries of property including distinctions between contract and property, and between real and personal property including fixtures and licenses to use property;
- Acquisition and regulation of personal and real property including possession, ownership and formalities;
- The history of Australian land law including Crown title, Crown powers to deal with land and the introduction of the Torrens system;
- Foundational concepts of land law including tenure and estates;
- Adverse possession;
- Land rights of Indigenous peoples including native title;
- Joint and common ownership;
- Non-possessory interests in land including security interests, profits á prèndre, easements and restrictive covenants;
- The nature, creation, acquisition, disposal, enforceability and registration of property interests in land, especially under the Torrens land registration system; and
- Equitable and legal priorities between conflicting interests under the Torrens land registration system.
This subject studies the nature, goals and structure of private law remedies, and is organised around the remedial goals of compensation, perfection, vindication, disgorgement, restitution and punishment. The subject explores how and why these different remedial goals are accorded differing priority and/or are given effect in different ways across different areas of private law, specifically torts, contract and equity, thereby deepening the student's understanding of remedies and also the nature of each of these substantive fields of private law.
Topics to be covered in the subject will include:
- Compensation (compensatory (including aggravated) damages for breach of contract, tort and in equity);
- Perfection (debt, specific performance and injunctions);
- Vindication (damages in substitution of rights and vindicatory damages);
- Disgorgement and accounting for profits;
- Restitution (the measure of restitution; rescission; unjust enrichment);
- Punishment in private law (exemplary damages); and
- Statutory remedies.
This subject explores a core area of private law - the law of torts. It builds upon skills introduced in the foundational subject, Legal Method and Reasoning, both with respect to the reading of cases and the interpretation of legislation. In substantive terms, the focus will be on a core area within the law of torts, negligence law. While traditionally a domain of the common law, the contemporary law of torts, and especially negligence, has increasingly received a great deal of attention from the legislature. This provides an exciting and challenging opportunity to investigate in considerable detail the interaction (and, at times, tensions) between judge-made and statute law. In addressing this interaction, close attention will be paid to the various (and, at times, competing) functions and objectives of tort law.
Topics considered in this subject (with varying degrees of depth) include:
- Features of tort law: classifications and definitions;
- Aims of tort law: the changing nature of tort law (including the Ipp Panel ‘reforms’ and human rights norms (where relevant);
- Causes of action: trespass to land (intentional tort);
- Cause of action: the tort of private nuisance;
- Cause of action: the tort of negligence (carelessness): in detail;
- Causes of action: assault and battery (intentional torts);
- Remedies: damages assessment;
- Statute-based strict liability: the Australian Consumer Law and the Competition and Consumer Act 2010 (Cth) (time permitting); and
- State-based compensation schemes (referred to throughout).
- Advanced Constitutional Law12.5
Advanced Constitutional Law
This subject studies a select number of advanced topics in the field of constitutional law. It builds on the concepts and ideas introduced in Principles of Public Law and Constitutional Law. The focus of study will be the Australian constitutional system, but the subject will draw on insights from other jurisdictions. The subject thus also provides an introduction to the field of comparative constitutional law, which seeks to understand and evaluate the purposes and functions of constitutions using comparative analysis.
The aim of the subject is to interrogate a number of fundamental questions that arise in the field of constitutional law. Should a constitution have a bill of rights and, if so, which type? How should courts decide cases? What checks and balances should be imposed on the exercise of public power? Are constitutions effective at protecting human rights and democratic government? How easy should it be for future generations to amend a constitution? The subject will study these questions by drawing on relevant scholarly writings and judicial decisions.
The first part of the subject will investigate one of the bedrock principles of the Australian Constitution: judicial review. It will consider whether it is legitimate for courts to review primary legislation for compatibility with the Constitution. In doing so, it will investigate why this issue has a different degree of salience in the United States. This comparison will provide an opportunity to consider the potential benefits and methodological difficulties associated with the study of comparative constitutional law.
The second part of the subject will examine a range of structural features of the Australian Constitution. In particular, it will analyse the justifications for, and specific aspects of, federalism and the separation of powers. This analysis will be supplemented by consideration of these features in other countries such as Canada, Germany, the United Kingdom, and the United States.
The third part of the subject will examine a range of rights-related features of the Australian Constitution. In particular, it will consider some of the provisions not considered in detail in Principles of Public Law and Constitutional Law, such as trial by jury (s 80) and freedom of religion (s 116), and what challenges might arise if a bill of rights was to be included in the Constitution. This part will look at the lessons that can be taken from the experience of countries such as Canada, India, New Zealand, South Africa, and the United Kingdom.
- Advanced Topics in Taxation12.5
Advanced Topics in Taxation
Advanced Topics in Taxation is a specialist subject that aims to give students advanced knowledge of selected topics in business taxation; international tax; tax avoidance; and the challenge of taxation for a sustainable government in a global era. The subject is taught in a seminar format.
The subject will examine Australian tax law in the context of contemporary theoretical and policy challenges. Key challenges include tax competition and tax co-operation between states, tax avoidance and tax havens; how to tax the digital economy and how to tax multinationals in a global context. Students will work on practical tax law problems in small syndicates to gain mastery of tax law principles through active engagement in tax planning for a business and will also engage in reading and discussing key tax cases and texts.
This subject enables students to apply advanced tax law to a range of commercial and policy contexts in preparation for professional legal practice. It integrates the development of specialist tax law knowledge with tax theory and policy in the real world.
- Advanced Torts12.5
This subject explores a core area of private law, being the law of torts. The subject aims to broaden and deepen students' knowledge of the law of torts in three ways. First, it looks at a range of topics that are not usually covered, at all or in great detail, in the compulsory subject. Second, the subject examines large theoretical debates as to the nature and function of tort law and how particular torts figure in these debates. Third, it examines case law related to these topics from other common law jurisdictions in addition to Australian materials.
Topics will vary from year to year but will include some of the following:
- theoretical accounts of tort law;
- the structure of tort law;
- economic torts;
- defamation and privacy;
- breach of statutory duty;
- misfeasance in public office and malicious prosecution;
- trespass to goods and conversion; false imprisonment
- vicarious liability and non-delegable duty;
- damages and other remedies for torts;
- comparative perspectives on tort law; and
- contentious and emerging issues in the law of torts.
The enforcement and protection of legal rights and interests ultimately depends on legal proceedings in courts and tribunals. Many if not most legal proceedings revolve around issues of fact, and in an adversarial context this means the presentation of competing versions of contentious events and the attempt by each of the parties to persuade the tribunal of fact to accept a version of events which would entitle them to the remedy or outcome sought by their client.
The focus of this subject is on the development of the specialised skills and expert judgment needed for this crucial aspect of legal practice, which can broadly be described as trial advocacy (as distinct from appellate advocacy). Effective trial advocacy requires a broad, complex and diverse set of skills, ranging from the ability to develop and present a persuasive narrative (both in an address and by examining a witness) to the ability to force an opposing witness to make concessions that will advance the party's case.
Advocacy enables students to develop this set of skills in a supportive workshop environment. Topics covered will include the adversary process; the role of the trial advocate; the development of case theories, themes and labels; opening and closing addresses; and witness examination including examination-in-chief and cross-examination. Students will be required to plan and conduct a variety of advocacy exercises.
- Animal Law12.5
This subject will look at the relatively recent discipline of Animal Law, which requires the synthesis of diverse legal principles in a way that exposes how in a given case or question, they may affect, challenge or arm the advancement of the welfare and treatment of animals. The subject will also consider issues arising in the defence of protestors or public advocates of the animal cause, and questions relating to law reform in circumstances where an animal protection legal regime fails to protect the overwhelming mass of animals.
The subject Animal Law will have a wide compass, ranging from fundamental questions arising from the conception of animals as personal property through to high questions of constitutional law principle. It will examine the manner in which strategic public interest litigation may be mounted to take on a whole industry rather than simply, as mainly occurs at present, prosecutions by way of a legal 'post-mortem' vindicating the fate of a few animals as due to ill-treatment at the hands of a defendant.
Particular topics to be covered in Animal Law will include:
- Strategic public interest litigation: its relevance, its challenges, and the creative manner in which it may be undertaken, including by a Commonwealth agency like the Australian Competition and Consumer Commission;
- Animals and international law: in particular, relevant World Trade Organization rules; the International Court of Justice whaling case between Australia and Japan; the Blue Fin Tuna case and the International Tribunal for the Law of the Sea; the wildlife trade and the relevance of the Convention on International Trade in Endangered Species of Wild Fauna and Flora and Australia's adaptation of its provisions in the Environment Protection and Biodiversity Conservation Act 1999; relevant principles of public international law; the welfare provisions of the Terrestrial Animal Health Code of the World Organisation for Animal Health (known as OIE) ; and a universal declaration of animal welfare;
- The conception of animals as property, including by possible analogy the development of English and American case law and legislation leading to the abolition of slavery;
- Constitutional law issues, including the High Court 'free speech' case of Levy (with a comparison of relevant United States jurisprudence), a detailed consideration of case law in respect of sections 92 and 109, and the implied freedom of political communication;
- The legal regime for the live export of animals; the legal regime for animals used in research , including relevant principles of breach of copyright and confidential information, and the 'public interest' defence well settled in the United Kingdom but negated or a matter of debate in different Australian jurisdictions; the legal regime for and challenge posed by feral animals; and the legal regime at a state and federal level for the kangaroo industry, with a consideration of relevant case law concerning management plans and principles of administrative law and statutory construction under the federal Environment Protection and Biodiversity Conservation Act 1999;
- The difficult questions that arise under the secondary boycott provisions of the Competition and Consumer Act 2010; and
- Interlocutory remedies such as the declaration or the injunction and the challenges that existing legal principles can pose.
- Climate Change Law12.5
Climate Change Law
This subject introduces students to the emerging, specialised field of climate change law and regulation, covering domestic, comparative and international legal dimensions. It develops and integrates legal knowledge from across many sub-disciplinary fields (e.g. administrative law and torts law), augmenting this through study of specific climate change-related legislation and case law, and relevant multidisciplinary knowledge to build an understanding of the complex interactions that define climate change law. Topics addressed will include the multidisciplinary nature of climate law study, structures for climate change governance at the international and domestic levels, modes of climate change regulation, such as emissions trading schemes and renewable energy targets, litigation and its role in securing climate justice, and legal frameworks for climate change adaptation. Case studies considered throughout the subject will provide students with an understanding of recent developments in the disciplinary area and the associated field of climate and energy law professional practice.
- Commercial Law in Practice12.5
Commercial Law in Practice
This subject will examine, from an advanced and specialist point of view, the rules, principles and practices of commercial law. An underlying theme will be the way in which the different academic categories of law blend and interact in the commercial world.
Topics covered include:
- the legal building blocks of commercial law – for example sale of goods, loans, guarantees, hire;
- the commercial transfer of assets – for example sale of goods, assignment of contractual rights and novation;
- common commercial contract clauses and their significance; Standard and alternative financing techniques;
- issues of substance and form in commercial transactions, including the Personal Property Securities Act;
- practical aspects of executing commercial transactions; and
- how corporate insolvency influences the structure of commercial transactions.
This subject aims to equip students with an expert knowledge of the major areas of law within the field as well as integrating new practical skills, including those involved in planning a transaction, reviewing documents, assessing the interplay and implications of common law and statutory regimes.
Within the various topics, students will also consider a comparative law analysis.
- Commercial Restitution12.5
This subject introduces students to the private law discipline of unjust enrichment and restitution law. Unjust enrichment constitutes an important source of private law obligation in Australia as in other common law systems, although common law systems have been relatively slow to recognise unjust enrichment as an independent source of obligation ranking alongside contract, tort, and equitable obligations. There has also been some confusion between restitution as a gain-based remedy and other forms of relief. This subject seeks to enable students to develop a specialist understanding of the law of unjust enrichment and restitution and in so doing, enable them to obtain an advanced and integrated command of the private law as a whole.
Although the primary focus is on the Australian law, as Edelman and Bant (Unjust Enrichment, 2nd ed., 3-4) observe, the discipline is necessarily comparative, drawing upon the law of many comparative common law and civilian jurisdictions. The subject develops and integrates legal knowledge from across many sub-disciplinary fields (e.g. contracts, torts, property and trusts), engages with a variety of sources of legal obligation (common law, equitable and statutory) and utilises both doctrinal and jurisprudential modes of legal reasoning to build an understanding of the complex interactions that define the law of unjust enrichment and restitution. Because the subject’s development is relatively recent, there are many areas which still have to be worked out by courts. The subject will examine the historical and substantive development of a law of unjust enrichment, its development and disintegration under the stewardship of successive Australian High Courts, its role in the private law as the third dominant source of private law obligations, its elements and defences, personal and proprietary remedies and the forensic, theoretical and practical advantages and disadvantages of unjust enrichment and restitution jurisprudence. It will consider developments from other jurisdictions, in particular England and Canada, where they can be of assistance to Australian law.
- Comparative Law12.5
Comparative Law is both a substantive area of intellectual engagement as well as a methodology with professional, academic and policy-making import. As an academic subject, Comparative Law has appeared, in various iterations, on academic curricula around the world, in Europe, the United Kingdom, Canada and the United States, for over a hundred years. However, with increasing globalisation and economic and legal interdependency, Comparative Law provides a key to understanding normative forces at work in Australian law as well as legal systems elsewhere.
Comparative Law is inherently interdisciplinary and can cut across the entire spectrum of the legal curriculum. In particular, Comparative Law is closely related to Legal History, Private International Law and Legal Theory. For example, Comparative Law shares its insistence on locating law in time and place with Legal History, and its use of multiple perspectives to view any one issue with Private International Law.
There are numerous approaches to considering Comparative Law. Traditionally, it has involved a consideration of that which is alien and different from the viewpoint of one's own system. American and English courses often look to Continental European systems, and Continental European courses look to the English and American common law. However, more recently, with the rise in interest in legal pluralism and the recognition of the multi-layered, hybrid nature of many legal systems, particularly those of Asia, some comparativists, such as H.P. Glenn, have been adopting a much broader perspective.
This subject adopts the latter approach and will have four main components.
First, there will be a consideration of the goals, purposes and methodology of comparative legal research, including consideration of current issues.
Secondly, using the H.P. Glenn text, Legal Traditions of the World, there will be an investigation of the characteristics of and interrelationships among several of the major legal traditions: indigenous or chthonic traditions, civil law, common law, Talmudic, Islamic, Asian. Issues and questions considered may include:
- What do the Inuit and Aboriginal cultures share in terms of a legal tradition?
- How do very old chthonic traditions, such as those of the Roma, persist in modern societies?
- How do legal traditions, such as the Talmudic and the Islamic, address legal change?
- What are the characteristics of modern Islamic law?
- Are all Western legal traditions ultimately derived from Roman law?
- How do civil law systems diverge from common law systems?
- Why does US common law, as a system, differ so markedly from Commonwealth legal systems?
- Hong Kong and China: one country, two systems?
- How do Asian centrally planned economies adapt European civil law?
- Are there indications that legal systems are diverging or converging? What are the forces operating in each instance?
Thirdly, there will be a more detailed analysis and comparison of the origins and sources of the two major Western legal traditions, the Anglo-American common law and the Roman law tradition, as found in continental Europe but also Latin America, Africa, Asia and even North America. Issues and questions considered may include:
- How has the common law been influenced by Roman law?
- What is the relationship between written law and customary law?
- What are the origins of the great 19thC codes of law?
- What are the characteristics of a code and how do codes differ from one country to another?
- What is the role of the judiciary in non-common law systems?
- Is the United States still a common law jurisdiction?
Finally, through problem solving exercises using real cases and real legislation, and in particular, the modern Civil Code of Quebec, students may investigate some substantive areas of the law (for example, property, obligations) from a comparative perspective. Issues and questions considered may include:
- Does good faith operate differently in contract law in different systems?
- How do systems operate without fiduciary principles?
- Are there doctrines which supplement the codes and what is their interaction with them.
- Competition Law12.5
Competition Law is about the legal regulation of markets as a means of preserving and promoting competition in Australia. As a critical component of micro-economic policy, this field of law is underpinned by economic theory and driven by primarily economic goals. The subject focuses on the way in which anti-competitive practices are regulated under Part IV of the Competition and Consumer Act 2010 (Cth): in particular, the regulation of (a) mergers and acquisitions; (b) misuse of market power; (c) horizontal restraints (cartels); and (d) vertical restraints such as exclusive dealing and resale price maintenance. It also addresses the policies and practices involved in enforcing competition law. Reform of competition law and policy will also be discussed.
The subject not only ensures that students have an advanced understanding of the technical aspects of this legal specialty, but also that they are able to critically analyse the law from both policy and practical perspectives.
The subject introduces students to an interdisciplinary approach in the study of law, through the introduction and application of economic concepts and theories in a legal context.
While it canvasses the policy objectives and challenges of competition regulation, the subject is also applied in its orientation in that it encourages students to explore the practical applications of the law in the context of real-life trade and commerce.
The subject also integrates comparative experience and insights from major overseas jurisdictions such as the United States and European Community, as well as from the developing field of international competition law.
Students are also given insights into the practical experiences and perspectives of those who work in competition law.
- Construction Law12.5
This subject introduces students to the specialised field of construction law. Whilst the focus is primarily upon the domestic law, many of the key themes and legal principles are encountered internationally; thus, an understanding of construction law in its comparative context will also be engendered.
The subject develops and integrates legal knowledge from across many sub-disciplinary fields (e.g. contract law and torts law), augmenting this through study of specific case law and legislation, and relevant multidisciplinary knowledge, to build an understanding of the complex interactions that define construction law.
Topics addressed will range from the common law and statutory landscape applying to construction law, through project procurement strategies and the specific legal issues which typically occur on projects (including unforeseen site conditions, work scope variation, time delays and payment claims), to means by which disputes can be avoided, managed, or resolved.
- Copyright and Designs12.5
Copyright and Designs
Copyright protection is the law’s primary mechanism for providing incentive for the generation of creative subject matters (such as works of literature, art, music and film), and for regulating the use of such subject matters by others. Design registration is the law’s primary mechanism for providing proprietary rights over the appearance of a mass-produced object. This subject explores in detail the operation of the copyright regime as it applies to creative subject matters, and the relationship between copyright protection and design registration. The principal topics considered include:
- The international framework for protection of creative subject matters and designs;
- The subject matters capable of protection by copyright;
- The requirements for copyright protection to arise;
- The exclusive rights granted by copyright;
- The exceptions and limitations to the exclusive rights of copyright;
- The subject matter of, and requirements for, design registration;
- The scope of protection provided by design registration; and
- Tte regulation of dual protection under copyright and design registration.
- Copyright and Patents12.5
Copyright and Patents
This subject is concerned with the grant of proprietary rights over the products of the intellect - i.e. with intellectual property. The particular intellectual property subject matters considered are creative works and industrial inventions. Copyright and patents are the legal means for granting exclusivity to these subject matters that are explored in detail. It is a field of great private and public significance. The economy is increasingly driven by intellectual property, meaning that this is a major area of private commercial interest. But it is also an area of growing public controversy, in which the need to provide incentives and protection for private endeavour must be weighted against societal interests in accessing valuable information-based goods.
The principal topics covered in the subject are:
- Copyright - the protection of works and other subject matter under the Copyright Act 1968 (Cth);
- Design registration - the protection for distinctive-looking mass-produced items under the Designs Act 2003 (Cth), and its relationship with copyright protection;
- Patents - the protection of inventions under the Patents Act 1990 (Cth); and
- Breach of confidence - the protection of trade secrets under the equitable action to restrain a misuse of confidential information, and its relationship to patent protection.
- Corporate Governance12.5
This subject introduces students to the governance issues associated with the ways in which companies - particularly large companies - are governed and controlled. The subject provides a critical comparative analysis of key issues in corporate governance, with focus on corporate governance issues of current importance. Detailed attention is then given to the subject on directors’ duties – key duties are outlined and probed in detail.
Principal topics include:
- the concept of corporate governance;
- current issues in corporate governance;
- overview of the current framework of corporate governance;
- key governance aspects of the duties of directors and other officers;
- role of the Australian Securities and Investments Commission (ASIC) in corporate governance and in enforcing directors’ duties;
- role of shareholders in corporate governance and the balance of power between shareholders and the board of directors;
- role of industry corporate governance guidelines and the Australian Securities Exchange (ASX) Corporate Governance Principles and Recommendations; and
- overview of key international corporate governance debates.
- Criminal Institutions12.5
Criminal law takes place in institutions. This subject studies the various public institutions that make up the official landscape of contemporary criminal law. It moves from police and prosecution offices, via anticorruption agencies and Royal Commissions, to courts and their procedures of trial and appeal, and thence to correctional prisons and allied custodial environments such as offshore detention regimes. It concludes with a consideration of criminal law reform bodies. Throughout, the central theme is the laws of criminal procedure and the ecology of institutional forums and officials that compose contemporary law. As French CJ remarked in his 2016 speech “Criminal Law in the 21st Century”, “criminal law engages the legal system generally …. criminal lawyers cannot live in silos.”
The studies of criminal institutions provide an in-depth treatment of their complex problems, procedures and forms of knowledge. Our central concern is with what contemporary criminal law is doing, how it does so and why. In addressing this concern, the course moves from institutions of inquiry and investigation, to institutions of court and adjudication (committals, trials and appeal), and then institutions of sentencing, punishment and detention. It ends with a consideration of law reform commissions that return the study of criminal law to the constellation of officials, procedures and institutions. Three questions provide orientation throughout:
- How do institutions of criminal law interact with and are affected by the conduct of other legal and social institutions?
- How are criminal procedures to be understood in relation with rule, law and administration?
- How are the lives of criminal lawyers lived with legal institutions?
These questions are developed in comparative and transnational contexts through the study of specific topics, which will be drawn from the following:
- adversarial and non-adversarial jurisdictions of criminal law
- commissions of inquiry, royal commissions, and anti-corruption agencies
- a privilege against self-incrimination and the accusatorial character of criminal trial
- police investigation techniques, and the audio-visual recording of confessions
- committal proceedings and case management
- the lives of criminal lawyers: defence lawyers and prosecution offices
- criminal courtrooms: docks and design, handcuffs and security
- trial by jury, trial by judge alone
- the performance of the trial: the authority and responsibility of the judge
- miscarriages of justice: appeals, experts and wrongful convictions
- sentencing, appeals and aboriginal disadvantage
- youth detention and youth justice
- hyperlegality: prisons, prisoners and immigration detention
- institutions of criminal law reform: commissioning institutions, procedures and officials
Invited speakers from a sample of criminal institutions studied will supplement, where possible, the in-class discussion and close reading of the essential readings. Assessment is designed to enhance research skills in criminal law, as well as explore topics of student interest in depth.
- Cross-Border Litigation12.5
This subject will examine, from an advanced and specialist point of view, the rules applicable to the court determination of cross-border disputes in Australia, in particular the issues of civil jurisdiction (including both the existence and discretionary exercise of jurisdiction), applicable law (focusing on the areas of tort and contract) and the recognition and enforcement of foreign judgments. The subject will examine both transnational and intra-federal disputes. This subject aims at equipping students with an expert knowledge of the major topics within the field as well as integrating new skills in international and comparative analysis.
This subject is concerned with the application of law to 'cyberspace' - i.e. to the virtual environment created by the Internet. It considers two major objectives of laws in cyberspace: regulation and proprietisation. The regulation theme focuses on governance of the Internet's technical architecture, and on public and private control of content on the Internet. The proprietisation theme focuses on the ownership of Internet addressing means, and on the protection of commercial reputation and creative material on the Internet.
The principal topics covered in this subject are:
- Cyberspace and the Internet;
- Jurisdiction in cyberspace;
- Censorship in cyberspace;
- Privacy in cyberspace;
- Trade marks in cyberspace;
- Copyright in cyberspace;
- Copyright liability of Internet intermediaries; and
- Virtual worlds.
The purpose of this subject is to give students an advanced and integrated understanding of (1) the ways in which commercial deals are structured; (2) the ways in which core legal principles from a range of law subjects are relevant to commercial deals; and (3) the role that lawyers perform when advising on and executing commercial deals and the skills that they require for this purpose. The issues are considered within the context of a business acquisition in Australia. Students will critically analyse the ways in which a business acquisition is structured and the applicable legal issues that arise in areas such as contract, property, torts and company law. Drawing on the theories of scholar such as Ronald Gilson, students will consider the role of business lawyers as transaction cost engineers and the technical and professional challenges that they face in performing this role.
This subject is of particular interest to students seeking to practise commercial law.
- Deals In Asia Pacific12.5
Deals In Asia Pacific
This subject examines the legal issues and practical challenges that arise in relation to cross-border transactions in Asia Pacific. Students will work through a series of cross-border transactions, 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 cross-border transactions (involving parties and assets in different jurisdictions) and also the legal issues that are relevant to each stage of a complex transaction. These issues will include the following:
- The different legal and regulatory systems in the selected jurisdictions;
- The impact of applicable law (in a contractual context and otherwise), including the impact of different areas of law such as contract, property, company, finance, and insolvency law;
- Dispute resolution and the different options in a cross-border transaction;
- The role of lawyers and the skills they require in a cross-border transaction (these include advisory skills, drafting skills, cross-cultural communication skills, negotiation skills and transaction management skills); and
- The importance of legal due diligence in relation to counterparties and assets.
- Democracy, Law and Civil Liberties12.5
Democracy, Law and Civil Liberties
This subject will consider the complex challenges involved in regulating civil liberties in a democratic state. The subject will focus on the ways in which legal protection for civil liberties may enhance democracy.
The topics covered in this course include:
- A theoretical framework of democracy and civil liberties;
- How the law protects liberty and democracy; and
- How the law regulates fundamental freedoms and political rights such as:
- citizen participation in elections;
- freedom of expression in a democracy;
- freedoms of assembly and protest;
- freedom of association; and
- equality and non-discrimination rights.
Case law from Australia and the United States concerning specific examples of the conflict between the protection of civil liberties and government policy will be examined. Case studies will include government leaks and the right of citizens to be informed about state activities, how government control of protest and dissent limits political participation, and the banning of political organisations in the name of state security. These case studies will consider the tensions between freedom and democracy, and the way law both protects and restricts civil liberties.
The subject will adopt an interdisciplinary and comparative approach by drawing upon literature in political philosophy, political science and historical studies. The subject canvasses competing conceptions of liberty, equality and democracy, aiming to critically analyse law’s regulation of civil liberties in a democratic context.
- Disability Human Rights Clinic12.5
Disability Human Rights Clinic
Disability Human Rights Clinic will analyse and report on rights violations experienced by people with disabilities and will propose solutions. The clinic will have an interdisciplinary focus bringing together the fields of disability studies and international human rights law.
Students will undertake 12 days of clinical work at Melbourne Law School. Students will participate in a range of clinical projects including legislative submissions, amicus briefs, shadow reporting, and others. Students will be taught lawyering skills in persuasive writing, organisational collaboration, and advocacy.
The clinical work will be complemented by 18 hours of seminars (1.5 hours each clinic day). Through lecture and discussion, students will acquire substantive knowledge in international human rights law, disability rights law and disability studies. During the classes, students will also reflect on their ongoing clinical experience.
- Economic and Business Law in Asia12.5
Economic and Business Law in Asia
This subject will be taught intensively in Shanghai and Hong Kong with the support of various host institutions and will examine, from an advanced and specialist perspective, economic and commercial law in Asia by reference to key transactions and key areas of substantive law, including:
- Trade and investment law;
- International commercial arbitration;
- Corporate mergers and acquisitions (including business vehicles);
- Property law;
- Finance and insolvency; and
- Economic and business law reform.
The subject aims to equip students with an expert knowledge of key areas of economic and commercial law governing transactions in Asia, including the role of lawyers and the practical skills that they require in order to perform their role effectively. Through learning about the law governing transactions in selected Asian jurisdictions, students will develop an ability to examine law from a comparative perspective and will gain an advanced, integrated understanding of the nature of commercial practice in the region. The teaching methodology will incorporate a transactions-based, skills-based approach and will be enhanced through guest lectures from commercial law practitioners in Asia and representatives of host institutions.
- Employment Law12.5
Employment Law is an increasingly diverse and complex field of legal regulation governing employment and industrial rights and obligations. In Australia, it comprises the common law of contract and several overlapping statutory schemes including principally the Fair Work Act 2009 (Cth), Commonwealth and State equal opportunity legislation, and work health and safety statutes. These different legal frameworks can only be fully understood and appreciated in their industrial, economic, social, and political contexts. Those contexts include international influences, dynamic federal-state relations, the tradition of Australian industrial relations with its values of industrial justice, strategic decision-making and advocacy of industrial associations, labour market trends, and new forms of business and work organisation.
This subject explores the field of employment law in detail, with a focus on the processes of law-making and intersections between different sources of rights and obligations. Dispute resolution and enforcement in the field of employment law poses particular challenges, across the different statutory frameworks, and these matters will also be closely examined.
The principal substantive topics that will be addressed in this subject may include:
- The common law framing of contracts of employment and the contracting arrangements of independent contractors and the self-employed;
- various aspects of the common law contract of employment including express and implied duties of employers and employees;
- international labour conventions;
- the constitutional framework underlying the Fair Work Act;
- statutory standards under the Fair Work Act regarding unfair dismissal, minimum wage rates, hours of work and leave;
- the regulation of employment rights and working conditions by awards and enterprise agreements under the Fair Work Act;
- the regulation of issues of discrimination and harassment under the Fair Work Act and equal opportunity legislation; and
- the regulation of work health and safety.
This subject will also examine a number of thematic issues, chosen from topics such as the rights of non-standard workers, fair treatment at work, safety at work, work-life balance, trade unions and freedom of association, employment security, and employment law responses to economic and organisational restructuring.
- Encounters: Meeting of Laws in Australia12.5
Encounters: Meeting of Laws in Australia
Encounter scholarship - the study of contact and contest between Indigenous people and settler colonisers - is an important method and practice in humanities, used to interrogate the limits and possibilities of cross cultural engagements. This subject undertakes this task within the boundaries of law. Using a case study method, the subject centralises the histories and present expression of encounters between Indigenous and Anglo-Australian practices of jurisprudence: the care and conduct of law. We will frame different encounters by examining and analyzing how Australian settler colonial law has dispossessed Indigenous peoples from their land and law over time, in the process constructing for them raced identities, with ongoing, lived consequences. At the same time, we will consider how Indigenous peoples have interpreted and mobilised law – their own, as well as a demand for responsiveness from Anglo Australian domestic law, and international law – to contest those consequences and impacts. The focus in this subject will be predominantly on the encounter between Indigenous Australians and the Australian legal system and nation state over time, and the questions raised about contact, contest and processes of colonisation and resistance will be positioned as transnational phenomena, with comparative analysis where appropriate. The case studies are linked by their consideration of the subject’s overriding themes of Knowledge, Governance, Interests and Recognition. We will study up to three Encounters, which may include: Land Relationships and Title (including the histories of land rights before and after Mabo); Assimilation and Child Removal Policies; Genocide and Law; and The Protection and Prosecution of Knowledges. The course as a whole will argue that close consideration of the historical and present encounter between Indigenous and Anglo-Australian traditions of jurisprudence offers techniques for legal practitioners and scholars to act and reflect on their own responsibilities for legal knowledge and practice; as well as becoming open to the jurisprudential purview of others.
- Entertainment Deals12.5
This subject is concerned with the emerging field of entertainment law in three major jurisdictions, focusing primarily on Australia, and, in addition the United States (home to the largest entertainment law industry in the world) and the United Kingdom. The subject will consider significant strands of entertainment law, including especially:
- Intellectual property rights in entertainment products (music, film, television, theatre, internet video games, publications, sporting events, etc);
- Celebrities and their personality rights (privacy, ‘publicity’ and related rights); and
- Contractual arrangements.
The emphasis will be on legal as well as practical aspects of the entertainment industry (including real-life scenarios and techniques of deal-making) and there will be a number of guest speakers with expertise in the field. The subject will conclude with a negotiation exercise which will draw together the above themes.
- Environmental Law12.5
This subject introduces students to the specialised field of environmental law, covering both domestic and international dimensions of environmental regulation. It develops and integrates legal knowledge from across many sub-disciplinary fields (e.g. administrative law and torts law), augmenting this through study of specific environmental legislation and case law, and relevant multidisciplinary knowledge to build an understanding of the complex interactions that define environmental law. Topics addressed will include the structures and principles for environmental governance, modes of and principles for environmental regulation, and the intersections of domestic and international environmental law. Case studies considered throughout the subject will provide students with an understanding of recent developments in the disciplinary area.
- Equality and Discrimination Law12.5
Equality and Discrimination Law
This subject examines the development, operation and future of anti-discrimination laws in Australia. Since legislation was first adopted in the 1960s to respond to problems of discrimination and inequality, there has been significant expansion of its scope, and development of knowledge about its social context, theories of equality and discrimination, and how the law operates. The course examines the capacities and limitations of law in trying to change broad social behaviour patterns in wide ranging areas of activity such as work, education, and supply of goods, services and accommodation. The intellectual background of the subject includes consideration of the ideas of equality and discrimination, and theories about their causes and remedies. As theory and legislative design has become more sophisticated, the emphasis in both has moved from a focus on discrimination to the underlying aim of promoting equality. The subject examines the difficulties of operating within a federal system, critically analyses the effectiveness of anti-discrimination law in reducing inequality in Australia, and where relevant contrasts Australian law with other approaches.
The subject will introduce anti-discrimination law generally and consider its operation in relation to the characteristics of sex, sexuality, race, and disability. The optional research paper provides students with an opportunity to study one of these areas, or another area of the law, in greater depth. The subject also offers the option for a limited number of students to undertake a placement in a legal service working in anti-discrimination law to provide an experiential basis for understanding and evaluating the law in operation. As limited placements are available, a selection process will be undertaken at the start of the subject if necessary.
The subject aims to develop expertise in the current legislative approaches and their development and a critical understanding of the historical and theoretical foundations of the law, and to evaluate its effect, including through international comparison. It considers how effective law has been in changing social practices and eliminating discrimination, and whether alternative approaches offer better prospects.
- European Civil Law12.5
European Civil Law
This subject offers students an opportunity to critically examine in detail a major legal family that is radically different from the common law. Class based discussion of the core features of the (European) civil law is built upon through independent and in-depth research exercises into selective aspects of this major family of law in the Western world today. This subject allows students to gain a deeper, and integrated, understanding of Australian law and, more generally, critically reflect upon the common law against a contemporary backdrop of globalisation. The growing importance of the legal order of the European Union will be a particular feature of examination as will be the current state of play as regards the scholarly debates concerning the various theories of convergence and divergence between legal systems. With respect to the latter, writings by outspoken scholar and critic Pierre Legrand will be scrutinised.
Principal topics include:
- Comparativism and the comparative method (with particular emphasis on the problem of transplantability);
- historical formation of the Romano-Germanic family of law (commencing with the fall of the Roman empire in the West in 476);
- codes and codification (including a study of the 19th century conditions favouring codification and their contemporary relevance together with close scrutiny of the core features of 'substantive' – as distinct from 'formal' – codes);
- selected case studies (with particular attention to core components of the law of obligations – i.e. tort and contract – as well as post-codification developments – e.g. social and consumer protection law);
- impact of the legal order of the European Union as a source of supra-national law (with special focus on the tensions between so-called deepening and widening in the European integration movement as well as the distinction between the ‘written’ and 'unwritten' laws of the Union); and
- theories of convergence and divergence (including their implication for the future study and development of Australian law).
- Family Law12.5
This subject aims to encourage a broad and sophisticated understanding of, and critical thinking about, contemporary Australian family law, by drawing on recent debate, research, and legal and policy developments in the area, focusing on parenting and financial disputes on relationship breakdown. A key goal is to consider legislation and case law in the context of empirical and other research literature from Australia and overseas to explore law in action.
This is a particularly important goal given the importance of social sciences knowledge and professional skill in family law practice, research, policy and reform. Students will also have the opportunity to discuss and explore significant policy debates and stakeholder perspectives.
Family law is a rapidly changing area of law. Specific areas of emphasis throughout the subject will be influenced by contemporary developments. However, in broad terms the topics covered will include:
- Relationship recognition and flow-on impacts of this in family law; Post-separation parenting law and process;
- family violence and family law: the relevance of family violence to both process and the substantive law (parenting and financial disputes);
- child support;
- property division on marriage and de facto relationship breakdown; and
- spouse/partner maintenance.
Classes will include input from speakers invited to discuss with us their work in areas directly relevant to the material covered.
- Global Lawyer12.5
This subject examines the various roles played by lawyers within the international legal order, including as advisers, advocates, negotiators, settlers of disputes, and drafters of legislation, contracts and treaties. Within the integrated theoretical frameworks of legal ethics, professional regulation, comparative law, and public and private international law, students will explore the complex functions and responsibilities of ‘international lawyers’, meaning those operating in the following international contexts:
- private lawyers acting in cross-border contractual negotiations, cross-border transactions such as mergers and acquisitions, or cross-border disputes involving individuals or firms;
- private lawyers practising domestic law in foreign jurisdictions;
- lawyers in internationally focused non-governmental organisations and think tanks;
- government lawyers addressing international issues; and
- lawyers within the Secretariat of an international organisation.
The class will have the opportunity to hear from and interact with expert interlocutors on-site at a diverse range of governmental, intergovernmental, non-governmental and commercial entities, taking into account recent developments.
- Health Law and Ethics12.5
Health Law and Ethics
This subject is designed to provide students with a broad understanding of some of the current legal, regulatory and ethical issues that arise in relation to promoting and protecting human health at an individual and population level. The subject aims to give students a sense of the breadth of the field that is ‘health law’ and to introduce them to some of the different ethical approaches commonly applied in this area, including utilitarianism, human rights, ethics of care, principle-based ethics and Kantian ethics. The subject will address the initial question of what it means to be ‘healthy’ and the appropriate role for law and regulation in in securing ‘good health’ before examining selected health law issues using an ethical framework.
At the individual level, students will have an opportunity to examine a range of current health dilemmas that arise from pre-birth to end of life decisions. Recent developments in reproductive medicine raise important ethical and legal questions about the status of the embryo, the welfare of the child to be born and the role of the state in regulating reproductive choice. Controversial topics include abortion, access to assisted reproductive treatment, selective reproduction, surrogacy and donor conception. Throughout a human lifetime, a myriad of health care decisions arise for an individual. Some of these can be challenging, particularly when the individual has diminished capacity or mental health issues. The subject will outline the doctrine of informed consent before giving students an opportunity to explore decision-making in complex cases.
The subject also introduces students to the notion of population health and some of the types of measures that are taken outside of health care settings in order to ensure the society’s health. Attention will be given to domestic and international legal mechanisms for responding to a range of communicable diseases (for example, Ebola and Zika viruses) and non-communicable diseases, such as those related to lifestyle factors (for example, tobacco use). The subject will also examine the domestic and international legal mechanisms available for ensuring that a society has a functioning health care system. In this context, students will study the role that international and domestic human rights law, in particular the right to health, play in securing access to quality health care goods and services.
- Human Rights Lawyering12.5
Human Rights Lawyering
Human rights are becoming increasingly important to the practice of law in a range of contexts whether at the domestic or international level, within government, the private sector or the community sector. Human Rights Lawyering is designed to equip students with the skills required for effective engagement with human rights in each of these contexts. Accordingly, the subject places a significant emphasis on developing the skills necessary to identify the meaning of a human right; when a human right has been violated and the procedures available to seek redress for such violations at both the domestic and international levels. However, it is also designed to extend students’ engagement with human rights beyond the development of their technical legal skills, to develop a critical, strategic and reflective approach to human rights lawyering. Attention will be given to developing the capacity to critically evaluate and respond to complex policy positions that impact on human rights or social and academic commentary that is critical of human rights. Careful consideration will also be given to an examination of how to develop strategies that will persuade actors from a diverse range of settings to adopt measures that enhance the protection of human rights. And students will be challenged to identify the limitations of human rights and the extent to which their own personal beliefs and values inform their understanding as to the meaning and relevance of human rights.
Importantly the development of each of these four competencies – the technical, critical, reflective and strategic – is to be achieved by an immersion in current human rights issues and case studies which will be drawn from both domestic and international developments. Significant efforts will be made to integrate the insights and experiences of legal professionals and human rights advocates into the teaching of the subject. Students will be expected to be active participants in the seminars and any extracurricular activities that are organised. And they will be encouraged to think about how they might contribute beyond the classroom to some of the many and challenging debates involving human rights both within Australia and beyond. Such contributions can take many forms including the publication of a research paper, the preparation of a submission to a Government inquiry, a letter to the editor or even undertaking an internship at the conclusion of the subject in a domestic or international human rights organisation.
- Insolvency Law12.5
An insolvency regime is a necessary part of the legal system in a capitalist economy. It is a means for dealing with businesses that fail, and individuals who cannot pay their debts. An insolvency regime is required to ensure that in those circumstances the remaining assets are equitably distributed amongst the creditors, the affairs of the insolvent business or individual are administered in an orderly fashion, businesses and individuals are rehabilitated to the extent possible, and that any wrongdoing is investigated and punished. Insolvency Law can aid the wider economy by ensuring that resources and people are devoted to more productive activities. To ensure equitable distribution of assets and to prevent abuses of the insolvency system to avoid paying legitimate creditors, liquidators and trustees in bankruptcy are given powers to enforce claims to assets and undo past transactions.
Insolvencies often raise legal, practical and theoretical questions of considerable interest, which are by no means confined to a narrow concept of "insolvency" itself. Consequently, insolvency lawyers require knowledge of many other areas of public and private law, including equity and trusts, corporations law, contract, property and securities law and constitutional and administrative law.
This subject involves a practical and theoretical examination of the law of personal insolvency (i.e. bankruptcy), and corporate insolvency. In terms of the practical law, the subject will cover the process and outcomes of placing individuals and companies under the various forms of insolvency administration under the Bankruptcy Act 1966 and the Corporations Act 2001.
While the subject concentrates on the law currently applicable in Australia, it will do so in the international context. Foreign insolvency regimes will be considered, both to illustrate the content and operation of the Australian insolvency system and to explain how a transnational insolvency is administered and regulated.
The examination of the practical aspects of the law will be integrated with the economic and social policy objectives of the applicable laws. This will involve critical reflection on the conflicting demands of different stakeholders in an insolvency. Thus, an examination of the national and international scholarship dealing with policy objectives in the context of the current domestic and international law of insolvency will be an important part of the subject. As well as discussing what the law is, students will be expected to research and consider proposed alternatives, and examine critically why the law is as it is and what it should be. International and local reform proposals will be examined to demonstrate different ways of achieving the social and economic objectives of an insolvency system.
Students will be expected to form and justify independent opinions on the strengths and weaknesses of current laws and proposed reforms, and to develop, where appropriate, other options.
- Institutions in International Law12.5
Institutions in International Law
This subject examines the place of international institutions within the international legal order, considering their structure, normative underpinnings, and activities. It focuses on inter- governmental organisations but also considers non-governmental organisations and the role of civil society and national governments in both types of institution. It considers how international institutions reflect conflicting notions of fragmentation and unity in international law. Principal topics to be covered include:
- the complex role of international institutions in the development of international law and global governance;
- introduction to specialised international institutions in Geneva and elsewhere including their history, trends in their mission, influence and importance, recent developments, and reform proposals;
- the theory surrounding fragmentation of international law, including the proliferation of institutions and dispute settlement tribunals and the proliferation of substantive laws;
- inter-organisational cooperation, coordination and conflict in areas such as trade, human rights, the laws of war, and development; and
- participation and representation in international institutions by governments, business, civil society and secretariat staff.
The class will have the opportunity to hear from and interact with expert interlocutors on-site at a diverse range of governmental, intergovernmental, non-governmental and private entities.
- Intellectual Property & Popular Culture12.5
Intellectual Property & Popular Culture
Intellectual Property and Popular Culture (IPPC) is designed to offer an interdisciplinary cultural studies perspective on the enforcement of intellectual property (IP) rights with a focus on the relevance of an understanding of cultural production and semiotic consumption to legal doctrine. It discusses the application of intellectual property laws to aspects of popular culture such as movies, television, music, sports, fashion, and lifestyle.
Contemporary culture in industrialised nations is characterised by a vibrant kaleidoscope of images and spectacles that permeate the fabric of everyday life, influencing consumption choices and political views, and providing meaningful materials out of which people may shape their own identities. It is in a hybrid mode as consumer-citizens that individuals participate to express freedom, choice and identity. The conceptual framework of cultural studies can help one better understand why certain cultural artefacts are universally popular and their significant impact within the environment they inhabit, and more importantly, can provide insights into how the law may respond in the context of this cultural milieu. In particular, this subject will examine the cultural and semiotic significance of celebrities (e.g., David Beckham, Rihanna), fictional characters (e.g., Superman, Mickey Mouse) and iconic status symbols (e.g., Louis Vuitton, Christian Louboutin).
IPPC uses relevant insights from cultural studies in a pragmatic manner to evaluate how an understanding of the contemporary production, circulation and consumption of such cultural products like celebrities, fictional literary characters and status symbols could ultimately assist in a more nuanced development of copyright, trademark and personality rights laws.
There is no prescribed textbook for this subject. Students will be referred to the foundational writings of Roland Barthes and Stuart Hall in semiotics and audience/media studies, the more recent works of star studies scholars like Richard Dyer and Graeme Turner, and the interdisciplinary IP legal scholarship of authors like Rosemary Coombe, Justin Hughes and David Tan. A comparative approach will be adopted to examine cultural themes in cases that involve the enforcement of IP rights to protect the celebrity personality, well-known fictional characters/movies/books/songs and iconic brands primarily drawn from the jurisdictions of New York, California, the United Kingdom, the European Union and Australia. This is not a course on Australian IP law.
This subject is designed for both students who have previously taken modules in intellectual property (e.g., copyright, trademarks) and students who are exposed to intellectual property for the first time.
The objectives of this subject are to:
- introduce key intellectual property rights (IPR) that are relevant to pop culture and popular iconography that includes the celebrity personality, fashion brands, movies and music, with a focus on claims brought by IPR owners in the United States, Europe and Australia;
- provide an interdisciplinary cultural studies perspective on the production, circulation and consumption of the celebrity personality and status symbols in contemporary society, and the relevance to the development of legal doctrine;
- highlight the transnational similarities and differences in the protection of IPR relating to popular iconography, especially in relation to the influence of free speech constitutional provisions; and
- examine, through the lens of cultural studies, the operation of four prominent causes of action in the United States, United Kingdom and Australia, with selected references to other jurisdictions:
- copyright infringement;
- trademark infringement and dilution;
- right of publicity tort; and
- passing off.
- International Capital Markets12.5
International Capital Markets
This course will examine the phenomenon of the internationalisation of capital markets in the last 20 years from a legal and regulatory perspective and its role in the Global Financial Crisis. An introductory section will look at the immediate causes of the Global Financial Crisis and the role played by international capital markets; the course will then proceed to place regulatory developments in context by examining the history, trends and issues associated with internationalisation of the marketand the regulatory techniques that have developed in response to them. Several different markets will be studied, regulated and unregulated, developed economies as well as developing or emerging markets, the Euromarket, the European Union, the United States, China, Brazil and others.
Part of the course will be devoted to specific US regulatory responses to the internationalisation of capital markets: Foreign Private Issuer exemptions, Regulation S, Rule 144A, Mutual Recognition Systems, ADRs.
The last part of the course will comprise a detailed examination of the consolidation of stock exchanges, the emergence of international standards, the work of the International Organization of Securities Commissions (IOSCO) in developing principles of securities regulation and disclosure; and the role of international financial institutions such as the International Monetary Fund and The World Bank, developments in markets such as China and Brazil and basic principles of Islamic finance. Coverage of all these topics will depend on the pace at which the course progresses, the goal being to provide ample time for class discussion.
- International Commercial Law & Disputes12.5
International Commercial Law & Disputes
This subject will examine, from an advanced and specialist point of view, a number of common commercial transactions entered into between private individuals located in different countries and between individuals and foreign governments. It will also cover important related issues such as corruption, foreign investment and dispute resolution. This course aims at equipping students with an expert knowledge of the major topics within the field as well as integrating new skills in international and comparative analysis. The topics to be examined are:
- International trade in goods, including the contracts for sale, transport and financing of goods to and from Australia;
- Corruption in global business;
- Entry into a foreign market through the mechanisms of distributorship, agency, franchising, licensing, technology transfer and foreign direct investment; and
- International dispute resolution—negotiation, mediation, litigation and arbitration (both commercial and investment).
- International Criminal Justice Clinic12.5
International Criminal Justice Clinic
Organized in partnership with Amnesty International, the International Criminal Justice Clinic will study efforts to investigate and prosecute those suspected of committing crimes under international law (genocide, crimes against humanity, war crimes, torture, extrajudicial execution and enforced disappearance) and conduct timely research and advocacy on topical human rights questions.
Students will undertake 12 days of clinical work (one day per week during semester) at Melbourne Law School. At the beginning of the semester, each student will be assigned a legal research project on a topical issue of international justice and human rights that they will work on during and outside clinic time and submit following the end of the semester. Throughout the semester students will also monitor on-going international criminal proceedings (for example at the International Criminal Court) as well as other developments in international criminal justice practice in order to identify emerging human rights issues, in particular relating to fair trial, the rights of victims and witnesses and gender justice. They will prepare rapid response legal analysis briefs on selected emerging issues and draft posts for a new Human Rights in International Justice blog commenting and reflecting on topical and emerging issues in the field.
Seminars will provide an in depth introduction to international criminal justice practice and related human rights issues. Additional guest lectures, including by practitioners in the field, will be organized throughout the semester during clinic days. Skill trainings will also be provided during clinic days on trial monitoring, legal research and analysis of international criminal law and international human rights law, and writing for advocacy. During weekly clinic meetings, students will reflect on developments in the field and their on-going clinical experience.
The work conducted by students will inform Amnesty International’s on-going advocacy, including litigation, to promote human rights compliance in all aspects of international criminal justice practice, including for the rights of all of those involved in proceedings – such as the accused, victims and witnesses – to be fully respected.
- International Human Rights Law12.5
International Human Rights Law
International Human Rights Law is a rapidly developing specialty area of public international law, which presents legal advocates with a very particular set of theoretical and practical challenges. Among them are issues associated with the origins of rights; the purported ‘universality’ of human rights; the treatment of marginalised groups (like refugees, women, children, the elderly, indigenous peoples, sexual minorities, and people with disabilities); the challenges associated with enforcing human rights at the international, regional and domestic level; the justiciability of economic and social rights; the balancing of conflicting rights and the application of human rights law during periods of armed conflict. There is also the vexed question of how to hold private actors, especially multi-national corporations, accountable for violations of human rights.
The focus of this subject is on how international human rights law either responds to, or being developed to respond to, these challenges. It is principally concerned with the core international human rights treaties and the work of United Nations Charter institutions, particularly the Human Rights Council and its Special Procedures. The subject aims to equip students with the skills necessary to engage with the international human rights system, so that they are able make a contribution to addressing the challenges associated with the protection of international human rights in the years to come.
- International Investment Law12.5
International Investment Law
International investment law regulates the entry and operation of foreign investment and is one of the fastest growing fields of public international law. Over the last two decades, there has been exponential growth both in the formation of investment treaties and in the invocation of their unique systems of dispute settlement (against developed and developing states alike). This subject offers in-depth, targeted analysis of the various sources of investment law, their protections and the growing jurisprudence of investor-state arbitral tribunals.
The subject begins by tracing the historical, political and economic causes for the development of a plurality of international legal rules governing foreign investment across customary international law, bilateral and regional investment treaties. Students are continually exposed to a methodology and pedagogy that is both rigorously inter-disciplinary and draws on comparative insights. For instance, the subject will examine the unique elements of dispute resolution in this field (which confer standing on private (foreign) actors against states) in light of key institutional differences with other international legal systems (including the World Trade Organization and the International Court of Justice).
Substantively, students will explore key cases in detail to critically evaluate the impact of investment law (such as guarantees of compensation in the event of expropriation of foreign assets) across a range of normative values. In particular, the subject will examine a broad set of controversies surrounding the impact of investment treaty disciplines on regulatory autonomy, environmental and health regulation, development strategies and the human rights of citizens in host states.
- Jessup Moot12.5
This subject involves five students competing as a team in the prestigious Philip C Jessup International Law Moot Court Competition, which has been running for around half a decade. Each team represents both the applicant and the respondent by preparing written memorials and presenting oral pleadings in a simulated case before the International Court of Justice (ICJ). Participation involves intensive work from November to February and additional work before and after that period. The problem is generally released in September and memorials are due in January. The national oral round is typically held in Canberra in February and the international finals are held in Washington DC in April. For more information on the competition see www.ilsa.org/jessuphome
- Law and Indigenous Peoples12.5
Law and Indigenous Peoples
The field of "law and indigenous peoples" is fast developing in Australia and elsewhere as a coherent body of law and theory in its own right, containing its own methodologies and specialities. It is a body of law that is a highly-specialised field of practice and scholarship, but also crosses and contributes to several major generalist areas of law, including property, constitutional law, legal theory, administrative law and international law. Accordingly justifications for indigenous claims have various overlapping bases, depending on the fields in which they are advanced, and include legal entitlements based on common law native title, customary law, special legislative regimes and institutions, equality and non-discrimination law, principles of self-determination and sovereignty, social and economic special measures, and cultural pluralism. In the settler states, indigenous claims and legal systems pose a challenge to standard theories of law and statehood, including some of the fundamental concepts underpinning liberal democratic governance, especially principles of human rights and non-discrimination. These issues underpin several major recent legal controversies in Australia, including the Northern Territory Emergency Response (2008), the Australian endorsement of the UN Declaration on the Rights of Indigenous Peoples (2009), and the proposed referendum on the constitutional recognition of indigenous peoples (2012).
Law and Indigenous Peoples brings together these debates and bodies of law to examine the legal and political status of indigenous peoples in Australia and the influence they have had on the development of Australian law, with reference to the law of other settler states and to international law. Students are encouraged to critically evaluate law and policy impacting on indigenous interests and the strategies used by states and indigenous communities to repair and manage their relationships. Subject materials emphasise case law and secondary materials from Australia, other settler states (particularly Canada, New Zealand and the United States) and the jurisprudence of international and regional human rights bodies. Substantive issues covered in the subject include the following:
- The ways in which indigenous peoples are defined and identified in law and policy;
- The processes and criteria by which indigenous communities are officially recognised by states and the significance of historic continuity tests;
- The experience of indigenous peoples as claimants using contemporary legislative or constitutional bills of rights and anti-discrimination law;
- The theory and practice of indigenous self-governance, including reference to indigenous constitutions and constitutional law and the governance of communal land;
- Processes and forums for hearing indigenous historic claims to land and resources and the difference between negotiated and litigated settlements;
- Legislative regimes governing indigenous property and institutions;
- International law and jurisprudence recognising the rights of indigenous peoples including rights to property; and
- The participation of indigenous peoples in international institutions and dispute resolution fora.
- Law and Legal Practice in Asia12.5
Law and Legal Practice in Asia
The aim of this subject is to provide students with an enhanced understanding of law and legal practice in an Asian jurisdiction through intensive pre-departure teaching, supervision of a research project on an Asian jurisdiction, a student-led seminar reflecting on their learning experiences and legal experience in an approved role in a workplace setting in Asia.
The intensive pre-departure teaching will be 8 hours long, spread over a couple of days. This teaching will be led by an expert in the chosen Asian jurisdiction and will offer an advanced introduction to the legal system of the jurisdiction. Core instruction will cover how to access current law and commentary on law in the relevant jurisdiction. In addition, students may engage actively with topical debates about law in Asia from among the following: Asian trade and investment flows and their significance for Australia businesses; managing risk in Asian investment; dispute resolution in Asia; regional regulation of the profession; human rights; public institutions; role of NGOs. Students must actively participate in pre-departure teaching and will be assessed by an hour long in-class test.
Students must also complete at least the equivalent of a 4-week unpaid work placement in the nominated Asian jurisdiction. Work placements will be hosted in an organisation approved by the subject coordinators. The work placement involves a minimum of 20 days work. Some employers expect students to attend 6 day/week placements.
During work placement, students must carry out legally-oriented work that offers students a practice-based exposure to law and legal practice in the jurisdiction.
The proposed work should build on the students’ studies to date in the Melbourne JD, involve written legal research work and be of an appropriately demanding standard to model professional practice.
At the end of their work placement, students are required to attend a 3-hour long seminar with student presentations. This seminar provides a structure for reflection on, and learning from, the work experience and how work in the jurisdiction was comparatively experienced by peers.
In 2019, the chosen jurisdiction is India. Students are responsible for making their own logistical arrangements and bookings, including visas, but the coordinators will provide support.
- Law and Literature12.5
Law and Literature
The focus of the subject is the development of the student's understanding of their personal and professional perspectives on their relationship to law and the practice of law. Students will use the lens of literature of and about law to investigate and critically reflect on the complex problems and professional challenges of law and the practice of law. Through the selection of a wide range of texts including non-fiction, fiction, film, art, plays and music students will examine such issues as the relationship between personal beliefs and professional responsibilities, cause lawyering and the role of creativity, passion and initiative in the development of law.
This subject is intended to be a capstone experience requiring the completion or near completion of all compulsory law subjects. The analysis of the texts will require students to reflect on and evaluate the interactions and fault lines between areas of law that the students have studied as discrete law subjects. For example we may examine the interplay and clashes between equity, criminal law, torts, contract and professional ethics in The Merchant of Venice.
We will also consider how literature enhances our understanding of the role of law in society by examining law's contributions and failings. We will examine the ways in which the legal system has excluded the consideration of stories and views that literature considers critical to a full understanding of events and actions.
Students will study the main theoretical approaches to and recent developments in the use of literature as a tool to analyse and critique the legal system and the roles of lawyers.
Students will be required to articulate and explain their views in class participation, peer to peer learning and online media.
- Law and the Holocaust12.5
Law and the Holocaust
The proposed course examines the relationship between law and the origins and implementation of the events known as the Holocaust. Students will consider the questions for law-making, judging, legal theory, and legal scholarship arising from Hitler’s rise to power, the legalization of the Nazi racial-biological worldview through eugenics and anti-Jewish legislation, the character of parallel anti-Jewish legal programs in Vichy France and elsewhere, the challenge to our conceptions of legal and moral responsibility that is presented by the idea of ‘administrative massacre’, and the question of how the Nazi legal era has been represented in mainstream jurisprudence.
By studying the sequential moments of legal and institutional pathology that provided the context for the persecution of the Jews – loss of meaningful constitutionalism or constitutional values, loss of legal rights, loss of citizenship, loss of the standards of the rule of law, loss of the status of the legal subject as a bearer of dignity, amongst others – students will have the opportunity to think deeply about the significance of these pathologies for our understanding of what law is, what we think law should be, and what conditions are required for law to mediate power rather than merely provide a vehicle for its expression.
No specialized background in history is required in order to undertake this course: those areas of particular knowledge necessary to successfully complete the course are to be found in the reading materials and will be clarified in the seminars. Students are advised that although this is not a course in International Criminal Law, International Human Rights Law, or comparative genocide, the subject matter is complementary to study in these areas, as well as to study in legal and political theory.
- Law Apps12.5
In Law Apps students will design, build and release a live legal expert system that can provide legal advice to non-lawyers. Legal expert systems (law apps) are applications that replicate the thought processes and actions of a lawyer in connection with a specific legal question. Law apps are a new and growing part of the legal landscape. Lawyers in Australia and overseas are using them to provide fast, accurate and cost effective answers to common legal problems.
The subject involves a series of distinct but related topics and tasks:
- The current role and future role of law apps;
- The identification of appropriate legal problems in the not-for-profit sector that can be answered by law apps;
- The design of sequences of appropriate questions and answers which culminate in the provision of correct legal advice for the problems;
- The authoring of a law app using the Neota Logic platform; and
- The release of the law app in a live web and or tablet/mobile based environment.
The semester will commence with an introductory survey of the role of legal analysis and advice programs and the use of artificial intelligence in legal advice in Australia and overseas. Students will be required to research, imagine and predict the future use of such technology in and beyond the legal profession. Students will be introduced to the fundamentals of law apps design and basic mastery of Neota Logic’s authoring tools. The Neota Logic platform does not require coding knowledge or application. It has been used in Australia and overseas as a platform of choice for lawyers building law apps. Throughout the semester students will have access to advice from Neota Logic's experts.
As the semester progresses the subject will explore other ways that technology is being incorporated into legal practice. Guest speakers from the profession and experts in digital technology will present in seminars. There is a light reading load in this subject as students will be required to spend time outside the seminars working in their groups on the design, authoring and release of their live Law App. The semester will culminate with a Law Apps Bake Off - groups will present their Law Apps to an invited panel of experts and the winning group will receive a prize.
At the commencement of the semester students will be provided with a choice of pre-identified not-for-profit organisations that are interested in being involved in the Law Apps subject. Students will be required to list which organisation they would like to work with in order of preference.
Students will be placed in a small group of three or four students and will work in that group throughout the semester. In collaboration with the not-for-profit organization, groups will identify suitable common legal problems that can be answered through a series of structured questions. This will involve visiting the organisations and meeting with key staff so that students understand the relevant needs and concerns of clients and the wider non-lawyer public. This group-focused process will enable students to build on and develop their skills in legal analysis, creativity, problem solving and innovation. The teacher will meet regularly with students individually and with groups to check on progress and to work with the group on any issues that may arise within the group. Part of the assessment for the subject is a group mark. This mark will be awarded equally across all students in the group unless an individual’s contribution falls substantially below the contribution of other students in the group, in which case that individual's mark will be reduced.
- Law of Commercial Cyberspace12.5
Law of Commercial Cyberspace
This subject deals with legal aspects of the commercial exploitation of the Internet, in particular, with the use of the Internet as a platform for content and service delivery. It includes theoretical as well as technical backgrounder to illustrate the complexity of the Internet value chain and to enable students not only to understand the architecture of the Internet but also to comprehend its implications (and limitations) for business. The subject presents the legal landscape of e-commerce against the background of current business trends and developing commercial practices, such as surveillance capitalism or the sharing economy. By giving a snapshot of the e-commerce market, its major players and dominant revenue models, the individual topics focus on existing challenges of both legal and technological nature. They discuss the respective legal issues that arise at various stages of setting up an online business or adapting an existing business to the online environment. The subject is practice-oriented and designed to give students more confidence when confronting legal problems of technological origin. It also enables students to tackle basic regulatory issues and equips them with the tools necessary to build convincing arguments.
- Law of Elections12.5
Law of Elections
This subject studies the regulation of a central mechanism for accountability and distributing power – elections. It adopts an interdisciplinary approach to the law of elections by drawing upon the disciplines of law, political philosophy and political science 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 facing electoral law will be informed by international standards and relevant examples from other countries, which may include Canada, India, Indonesia, the United Kingdom and the United States.
Topics covered in this subject may include:
- Why do elections matter? Democratic theories of elections and their critiques;
- Which public officials should be elected? The case of judges;
- Constitutions and elections;
- 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 fair 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’?; and
- A case study in the limits of election law: Lobbying and its regulation.
- Law Reform12.5
This subject in particular builds upon a wide range of subjects including Torts, Obligations and Contract, where changes in the law form part of the substantive law program, to go behind the scenes of the law-reform process. The subject will be historical and comparative and will consider theories and practices of law reform as well as the translation of reform initiatives into new law, generally in the form of new legislation. A particular aspect will be case studies focusing on the success (or alternatively failure) of selected law reform initiatives in Australia and other jurisdictions. Students will be encouraged to develop their own case studies in class contributions and research essays.
Topics addressed will include:
- Defining law reform - law reform versus harmonisation, restatement, clarification;
- History and philosophy of law reform - 19th century utilitarian law reform movement; 20th century developments including legal realism, socio-legal studies, law and economics; and recent trends including new rights discourses, 'multiculturalism', debates about top-down versus bottom-up reasoning and role of legal theory versus legal pragmatism;
- Institutional aspects: ad hoc law reform, government agencies, specialist law reform committees and law reform commissions; influence of international and regional standards; state/territory versus federal initiatives and constitutional constraints - theory of competitive federalism; is there a best practice or are multiple models of law reform possible?;
- Challenges of legal knowledge - use of 'experts' versus generalist law reformers; crossing boundaries of private and public law; law in economic, social and cultural context;
- Beyond purely 'legal' research - empirical research, consultation, lobbying;
- Finding solutions - challenges of legal transplants (can laws be transplanted from other jurisdictions?), new solutions to new/old problems, the importance of legal creativity; and
- Understanding legislation and the legislative process versus courts and judicial processes.
A number of case studies will be covered in the subject, and may include:
- 19th century modernisation of intellectual property statutes in Britain; contemporary significance of the modernisation for Anglo-Australian jurisdictions; the US compared;
- Post-War 'codification' of commercial law in the US, especially the Uniform Commercial Code and American Law Institute’s Restatements on Contracts, Torts and Unfair Competition; contemporary relevance and exportability;
- Post-War consumer protection and product liability reform in Europe, Australia and New Zealand; and more recent recalibrations;
- Contemporary privacy and publicity law reform efforts in the UK, Hong Kong and Australia; influence of bills of rights here; challenges and prognosis; and
- US restitution law reform under the aegis of the American Law Institute's Restatement 3rd 2010; comparison with the Australian High Court's revisionist approach.
- Legal Drafting12.5
Most legal thinking needs to be communicated in a written form. For legal advice to be useful and effective for clients, it needs to be able to be readily understood by people without a background in the law. It also needs to address the issues which are important to the recipient of the advice. The practice of law also involves the use of technical legal documents such as contracts. For these legal documents to be effective and to achieve the aims of the parties to whom they relate, they should be prepared by someone with expert legal drafting skills.
The focus of this subject is on the development of the specialised skills needed for legal drafting. This crucial aspect of legal practice requires a broad set of skills including the ability to explain complex ideas using clear and simple language, the ability to understand the relative importance of various legal issues, attention to detail and structure, and an ability to properly appreciate the purpose and audience of the document.
Legal Drafting enables students to develop this set of skills in an interactive manner. Topics covered will include understanding the types of drafting styles, drafting legal advice, presentation of legal advice, persuasive legal drafting, legal drafting in workplaces outside of law firms, and drafting technical legal documents. Students will be required to prepare a variety of types of written legal work which would be typically required in a legal workplace.
- Legal Histories12.5
Legal Histories has two main aims. The first is to explore the empirical study of law’s past, in order to think broadly and critically about law’s meaning and development. We will interrogate questions of intent and method in a series of targeted workshops with scholars about their work, drawn from the disciplines of both law and history. The second interrelated aim is to encourage students to engage with legal history as a significant strand of legal thought and practice. Interwoven with the empirical workshops, the main body of seminars will introduce students to the concept of historiography- the ideas, theories and practice of writing history, but positioned within legal frameworks, dominated by legal questions and using legal sources. This will involve exploring the shifts in thinking about legal history itself; both as a genre of history writing, but importantly as a practice of legal scholarship, and often with very specific outcomes in litigation and reform processes. In this way, the seminar topics will include consideration of a range of approaches: from classical common law methods and constitutional interpretation to the critical legal histories emergent from indigenous and feminist perspectives.
The subject will explore how legal history is a serious question of method for practices of civil justice and legal change, not just an abstract question for academia. It will do this by looking at cases where ideas of historiography are crucial, and which may include, for example, Brown v Board of Education and the Sears cases in the US; Mabo and native title litigation in Australia; war crimes trials in International criminal law.
- Legal Internship12.5
The aim of this subject is to provide students with the opportunity to gain practical legal experience and a public interest or community-focused legal workplace experience that complements and deepens their coursework learning in the Melbourne JD.
Internships can be hosted by any public interest organisation that will facilitate the student undertaking legally-oriented work, including government departments, regulatory and statutory bodies, courts and tribunals, legal assistance sector organisations such as legal aid or community legal centres, and non-government or not-for-profit organisations. Host organisations can be locally based, interstate or international. The proposed internship must be approved by the Subject Coordinator – the internship experience should build on a students’ studies to date in the Melbourne JD and be of an appropriately demanding standard to model professional legal work or practice.
Students must complete a compulsory orientation, at least 20 days of unpaid practical legal experience at the host organisation and all of the assessment tasks which include a reflective journal and a legal writing portfolio.
- Media Law12.5
This subject examines the core legal constraints imposed on the media in their publishing activities. The first part of the course requires students to analyse and evaluate broad principles relating to freedom of speech and public interest and their application to the media. It also examines the greater role that the legal protection of human rights, especially in the international context, has played in the development of media law. The second part of the course explores the constraints that are imposed on the media in their reporting of court proceedings, including contempt of court and the issuing of suppression orders by the courts. The third part of the course comprises a comparative, in-depth examination of the law of defamation across Australia, the United Kingdom and the United States. It also draws on case studies from other jurisdictions, such as Canada and South Africa. The final part of the course looks at privacy and the media. It considers the current state of privacy protection in Australia, and requires students to undertake a critical, comparative analysis of the position in Australia and recent developments in the United Kingdom and the United States.
- Media Regulation and Freedom of Speech12.5
Media Regulation and Freedom of Speech
The focus of the subject is on freedom of speech, media freedom and the law. The first part of the course looks at the key theories and writings about freedom of speech and media freedom. It then considers the legal protection of, and cultural attitudes towards, freedom of speech and media freedom across a range of jurisdictions (including Australia, the UK, the US and Continental Europe), with particular attention given to different constitutional and human rights contexts. The second part of the course explores media freedom and freedom of speech through a series of comparative case studies that focus on specific areas of legal restraint on media freedom - for example, hate speech (racial and religious vilification), restrictions on offensive publications, national security and sedition, issues regarding newsgathering, protection of journalists' sources, freedom of information (FOI) and access to documents, and media regulation.
Mediation has developed over the past twenty years from the legal fringes to become the process which resolves more legal disputes than any other. The aim of this course, building on concepts studied in the JD compulsory subject LAWS90140 Disputes and Ethics (formerly LAWS50027 Dispute Resolution), is to develop an understanding of what takes place within the private confines of mediation to make the process effective, and how the different participants interact.
Students will learn both the practice of mediation, through extensive involvement in simulations, and develop a sophisticated understanding of current mediation law and theory.
The subject will examine when and how mediations take place, the roles of all persons involved, the legal frameworks supporting and promoting mediation, and the interaction of mediation with other dispute resolution mechanisms. It will provide an overview of mediation in specific legal contexts, such as commercial litigation and family law, and look in detail at a number of statutory mediation schemes such as the Farm Debt Mediation Act 2011 (Vic.). It will examine mediation as a career within the broader legal landscape and the evolution of the National Mediator Accreditation Scheme.
Teaching will be through a combination of lectures on specific topics, interactive exercises and mediation simulations, and contributions by visiting speakers with specific expertise.
- Melbourne Journal of International Law12.5
Melbourne Journal of International Law
This subject is available only to students who are Members of Melbourne Journal of International Law (MJIL) and are committed to a position involving a substantial intellectual contribution to MJIL during the enrolled semester. The nature of the 'substantial intellectual contribution' required of students will vary depending on the nature of their work with MJIL. It will typically involve, at a minimum, taking responsibility for the sub-editing of material accepted for publication, such editing to be typically done in respect of at least one lengthy article (in excess of 10,000 words in length) or multiple shorter articles (each under 10,000 words in length). The contribution of students holding Editorial positions may be in the form of strategic editorial control and decision making.
Making a 'substantial intellectual contribution' is a hurdle requirement for the subject, which permits students to provide evidence of what the student has learnt about the nature of international legal research from undertaking their tasks within MJIL. This evidence takes the form of the writing tasks specified below, requiring engagement with international legal scholarship as well as critical reflection on work undertaken.
- Melbourne University Law Review12.5
Melbourne University Law Review
This subject is available only to editors of Melbourne University Law Review (MULR), who, as editors, are committed to making a substantial intellectual contribution to MULR during the enrolled semester. The nature of the ‘substantial intellectual contribution’ required may vary depending on the nature of their work with MULR.
Making a ‘substantial intellectual contribution’ is an implicit hurdle requirement for the subject, which permits students to provide evidence of what they have learnt about the nature of legal research from undertaking their tasks within MULR. This evidence takes the form of the writing tasks specified below, requiring engagement with legal scholarship as well as critical reflection on work undertaken.
- Mergers, Acquisitions & Capital Markets12.5
Mergers, Acquisitions & Capital Markets
Australian corporate law has become highly specialised. In particular the regulation of capital markets, securities offerings, mergers and acquisitions (M&A), takeovers and schemes of arrangement has become increasingly detailed and intricate. Market participants need to have an understanding not only of the black letter law relevant to corporate transactions, but also of the policies and theories underlying that law, and guidance from regulators including the Australian Securities and Investments Commission, the Australian Securities Exchange and the Takeovers Panel. Ultimately, to be successful in M&A and securities transactions, companies and their advisers need a thorough understanding of tactics and strategy and how they fit within the law, policies and procedures.
This subject covers the major areas of public company M&A law, practice and strategy including takeovers, schemes of arrangement, capital raisings, ASX listing rules, insider trading and Takeovers Panel disputes. This course includes lectures from leading M&A practitioners, and analyses recent transactions to illustrate the legal principles and tactical strategy covered in the subject. The course is intended to provide students wishing to pursue a career in corporate/ M&A legal practice or in investment banking/financial markets with relevant specialist knowledge.
Topics to be covered include:
- The principles of takeovers law and capital raising/securities offerings in Australia and their application to public company transactions;
- Comparative analysis of takeover regulation in Australia, the United Kingdom, the United States;
- Negotiated acquisitions and disposals and the interplay between fiduciary duties, Takeovers Panel policy and exclusivity and deal protection measures;
- Friendly and hostile takeovers and the impact of Takeovers Panel and ASIC policy on takeover strategy;
- Schemes of arrangement and the role of the courts and ASIC in such schemes;
- Takeover/M&A strategy including bidder and target defence tactics (including responding to shareholder and rival bidder actions) and the advantages and disadvantages of different acquisition techniques;
- The Corporations Act and ASX listing rules disclosure regime and its application to corporate fundraising and public company transactions;
- Liability for defective disclosure and practical procedures employed to limit or avoid liability;
- Continuous disclosure obligations, including the role of the Australian Securities Exchange in regulating listed entities and directors' liability;
- Prohibitions on conduct in relation to capital markets (including insider trading and market manipulation); and
- Strengths and weaknesses of our laws and regulatory system, and proposals for reform.
- Multiculturalism Religion and the Law12.5
Multiculturalism Religion and the Law
Across jurisdictions, debates on the appropriate legal response to the demands of culture and religion are growing in importance. These debates are set against the background of contemporary controversies around cultural drug use, religious dress (e.g. the burka), claims for special language rights, religious animal slaughter, religious arbitration or mediation and the rights of indigenous peoples. This course will explore these debates through the following questions, among others:
- Is the legal protection of religious freedom justified? What should the scope of such protection be?
- What demands does multiculturalism make on the law? Is multiculturalism bad for women? How should the law respond to multiculturalism?
- How should the law respond to demands for exemptions from general laws for cultural or religious reasons?
- How should the law respond to demands for the accommodation of religious and cultural norms within state legal systems?
- How should the law respond to religious or cultural practices that have a far-reaching impact on children?
We will explore further controversies (e.g. the legal recognition of polygamy and polyamory) and different jurisdictions (e.g. the personal law system in India) of interest to students in the final seminars.
Murder is one of the most prominent crimes in the legal calendar, and it has provided a recurrent reference point for literature, cinema, television, photography, the arts and the humanities more generally. Using examples from legal and public culture, this subject examines in depth the ways in which we make sense of law, crime and killing.
The subject begins with the doctrinal history of murder and allied crimes in order to present the central concepts of the law of homicide and of this subject. It then moves to consider the processes of proof and punishment of murder, before turning to an in-depth study of a variety of specific legal and cultural forms of murder.
The overall themes of the subject are three: encounters between legal and cultural responses to the crime of murder; the nature of the difficulties that murder presents for criminal law and public culture; narratives of community, memory and responsibility constructed by responses to murder and its aftermath.
These themes will be explored through an in-depth treatment of the complex problems and forms of knowledge from a range of illustrative topics. In any given year, topics will be chosen from amongst the following:
- The public culture of murder, law and homicide;
- history and the changing patterns of homicide law;
- serial killing, public trials and pre-trial publicity;
- infanticide and child homicide
- literary representations of unlawful murder;
- proof, intention and circumstantial evidence
- defences, fences such as provocation, insanity, diminished responsibility;
- family violence and conjugal homicide;
- sentencing and homicide;
- proof of murder, and determinations of life and death;
- homicide, coroners and deaths in custody
- corporate killings and workplace deaths (including environmental disasters); and
- law reform of homicide in comparative perspective.
Examples will be drawn from legal texts and judgments, and from literature, film, and the arts. In this way, the subject compares and integrates the responses of criminal law and public culture in making sense of law, crime and killing.
Negotiation is an essential skill-set for lawyers and the legal profession. Due to negotiations by lawyers, many civil and criminal law cases are settled before the parties even enter the courtroom. Lawyers negotiate on behalf of their client with other lawyers as well as third party non-lawyers. Lawyers must also negotiate internally with their own client as well as other parties to reach consensus. Negotiations also occur in various forms, from traditional settings such as conference rooms and courtrooms, to non-traditional settings such as e-mail and social media communication. Thus, the ability for lawyers to develop and utilise a negotiator's toolbox to negotiate within and among a broad array of environments are essential elements of the legal profession.
The aim of this subject is to acquaint students with the theory and practice of legal negotiations as they relate to the strategic legal process. This class will be highly interactive. Students will have the opportunity to read and discuss a variety of written materials, engage in a variety of negotiation simulations (involving role-playing scenarios, case hypotheticals, and experimental games), as well as become intricately involved in other negotiation-related scenarios and situations.
Classes will generally be comprised of (1) concepts/strategies (theory) presented; (2) simulation and role-playing scenarios applying such concepts/strategies (practice); and (3) a de-briefing of the two components (theory and practice). For the negotiation simulations to be as valuable and realistic as possible, preparation and active participation is expected by those negotiating and playing specified roles - for each participant's individual benefit as well as for the benefit of all class participants as a collaborative group.
- New Ideas in Legal Scholarship12.5
New Ideas in Legal Scholarship
This subject is designed for second and third year JD students who are interested in academic legal scholarship. It will expose students to current debates and introduce them to the process of producing scholarly work at a professional level. Students will learn how to critically and constructively assess scholarly works in progress, and will develop their own views about particular debates, topics, and methods of inquiry.
Students will be expected to demonstrate skills and knowledge acquired in a series of ‘response papers’ that comment on/critique the works in progress under examination. Response papers will form the basis of assessment for the subject.
Students will meet with the subject coordinator seven times over the course of the semester. There are two kinds of meetings students will be required to attend: those held concurrently with the regularly scheduled meeting of the Legal Theory Workshop (workshop weeks); and student-only meetings held during weeks when there is no Legal Theory Workshop meeting scheduled (seminar weeks).
The Legal Theory Workshop is Melbourne Law School’s works-in-progress discussion forum for faculty and research higher degree students, which meets regularly throughout the academic year. Each workshop meeting features an unpublished article-length paper from a guest author, circulated and read in advance by workshop participants. Workshop guests regularly include distinguished legal scholars from across Australia and overseas. Topics vary depending on the guest’s particular area of scholarly expertise and interest, but cover a wide range of issues in legal scholarship across all sub-disciplines. Past guest paper topics have included:
- International legal obligations and indigenous peoples;
- Moral disagreement and legal justification;
- Private law and social illusion; and
- Religion and legal reasoning.
During workshop weeks, students will meet for one hour before the Legal Theory Workshop meeting to discuss student response papers and the workshop guest's paper. After that hour is over, students will attend the two hour workshop meeting.
In addition, during two seminar weeks, students will meet for one hour with the subject coordinator to discuss topics related to legal scholarship and academia. This will include one introductory meeting, plus an additional meeting to discuss topics based on students’ interests.
- New Technology Law12.5
New Technology Law
This subject investigates the way in which new technological innovation is affecting almost every aspect of law and legal practice. It will provide students with an advanced understanding of the impact of new technologies on law and legal practice and develop the skills to analyse the role of law in both collaborating with and regulating new technologies. Topics will include:
- Innovation and disruption to existing business models and the legal profession (both in terms of the delivery of legal solutions and the law firm operations);
- The impact and regulation of blockchain, smart contracts, artificial intelligence, machine learning and robots and drones; and
- The burgeoning growth of the tech industry and its relationship with traditional business models and social enterprise.
- Not for Profits and the Law12.5
Not for Profits and the Law
This subject will consider the legal framework applicable to not-for-profit entities in Australia. It is estimated that there are more than 600,000 not-for-profit entities within Australia and that collectively they make a significant contribution to the economy. The subject will critically examine:
- Context: the nature of the NFP sector and the diversity of entities that make up the sector;
- The variety of legal forms and the legal consequences of adopting different forms;
- The significance of NFP status and the interaction with notions of charity, including tax treatment;
- Definitional issues, including divergence between Commonwealth and States as a result of the Charities Act 2013 (Cth);
- Historical developments relating to the definition of charity and the various sub-groups eg public benevolent institutions, necessitous circumstances funds, health prevention charities;
- Key issues in relation to charities and similar NFPs eg identifying 'worthy' purposes; non- profit/non-distribution requirements; public benefit requirement and relationship between trust law and tax law;
- Constitutional dimensions, including the scope of the Commonwealth taxing power and the residual powers of the States and Territories and the impact on the development of charity law;
- Theoretical justifications for tax concessions;
- Policy issues including advocacy, government bodies and extra-territorial operations and philanthropy;
- Various tax concessions at Commonwealth and State and Territory level and tax avoidance and tax evasion involving NFP status;
- Private and Public Ancillary Funds and other issues associated with philanthropy; and
- Regulatory issues.
- Patents and Trade Secrets12.5
Patents and Trade Secrets
Patents are the law’s primary mechanism for providing incentive for the generation of inventions, and for regulating the use of inventions by others. Trade secrets are confidential details about commercial products and services, protection for which is available through the action in equity to restrain a breach of confidence. This subject explores in detail the operation of the patent regime as it applies to inventions, and the relationship between patent protection and trade secrets protection. The principle topics considered include:
- The international framework for protection of patentable inventions and trade secrets;
- The subject matters capable of protection by a patent;
- The requirements for the grant of a valid patent;
- The exclusive rights granted by a patent;
- The exceptions and limitations to the exclusive rights provided by a patent;
- The subject matter of, and requirements for, trade secrets protection;
- The scope of protection provided to trade secrets; and
- The relationship between patent protection and trade secrets protection.
- Philosophical Foundations of Law12.5
Philosophical Foundations of Law
Philosophical Foundations of Law is an interdisciplinary subject, run by Law School faculty members, faculty members from the School of History and Philosophical Studies, and prominent members of the judiciary. The aim of this subject is twofold – first, to develop in students a high-level understanding of how legal rules embody, and reflect, important philosophical and moral notions which are themselves examinable; and, second, to develop in students a sophisticated approach to thinking about legal questions which employs philosophical rigour.
The subject will be structured around a series of seminars run by guests who are experts in the area on which they are speaking. Guests will include academics, legal practitioners, and members of the judiciary. Some seminars will involve two presenters, one an academic and the other a judge/practitioner. These combinations are designed to demonstrate the close relationship, and conceptual overlap, between the disciplines of law and philosophy. Subject coordinators will ensure thematic continuity throughout the subject by drawing out common threads which emerge from individual presentations and class discussions.
Particular topics to be covered will vary from year to year, but may include the following:
- The ethics of humanitarian action: the laws of war and aid;
- the role of moral concepts in the regulation of commercial activity;
- the attribution of criminal responsibility, and the relevance of intention, motive, voluntariness and consequences;
- the purpose and justification of criminal punishment, and the meaning and relevance of remorse;
- law and political philosophy - Mabo as a case study;
- individual autonomy and the duty of others to take reasonable care; and
- how far do human rights notions account for our conception of justice?
Throughout the course of the subject, students will be encouraged to:
- Identify, and engage with, philosophical concepts (such as autonomy, causation and good conscience) which underpin areas of substantive law;
- identify, and engage with, the frameworks of ethical and political theory within which substantive law has developed;
- identify, and engage with, the ethical and political choices which inform the development and application of substantive law; and
- develop habits of analytical rigour, logical analysis and linguistic precision, in both exposition and argument.
- Property Law and the City12.5
Property Law and the City
Property law governs relationships between people with respect to things. Cities combine humans and human endeavour in unparalleled proximity. This subject provides an opportunity for students to consider the connections between the law of property and urban environments. It will prompt students to ask how property law shapes cities and, in turn, how cities shape the law of property. Students will be introduced to a literature that attempts to identify the defining attributes of property, including private, common and state property, and then to a literature that considers the relations between the social institutions of law and of cities. The subject will then turn to several discreet property interests (covenants and strata property) and to expropriation law to examine their operation within the city. Finally, it will use the challenge of homelessness to focus attention on the appropriate regulation of public spaces or common property. Throughout the course, students will be asked to consider the tensions between private and public interests and to evaluate the balance between them. Students will develop research projects on some aspect of property law and the city, and will present their projects to the class in the city.
- Public Interest Law Clinic12.5
Public Interest Law Clinic
This subject provides practical experience in which students support lawyers in public interest organisations in the delivery of legal services to the community. Students will undertake 12 days of clinical placement with a partner organisation in the community or government sector. On placement, and under supervision, students will utilise the legal knowledge and skills acquired during their degree to undertake work on legal issues with real clients, and in doing so, will be exposed to the realities of legal practice. The placement will be through regular, scheduled attendances throughout semester.
Prior to commencing with their host organisation, students will participate in two days of intensive orientation to prepare for their placement, including learning new legal practice skills and about specific areas of law where relevant. This will be complemented by seminars during the placement period. In these seminars, students will reflect on their ongoing clinical experience. This combination of practical placement and academic support will allow students to consider and reflect on the broader contexts in which legal issues arise, the lawyer's role and relationship with the delivery of justice and contemporary developments in professional practice.
A central component of the subject is that students critically reflect on their practical experience of public interest lawyering. The reflection serves several purposes. First, it gives students the opportunity to consider how the issues and ideas raised in the context of public interest lawyering are reflected in their practical experience in this area of law. On an individual level, it also provides students with the opportunity to reflect on their own use of legal skills, knowledge and approach to practice and consequently build on these skills, knowledge and competencies.
- Public International Law12.5
Public International Law
This subject is designed to enable students to critically analyse the principles of public international law and to understand the way in which these principles may be used in the practice of law. The subject will build on the understanding of international law acquired in Principles of Public Law and enable students to engage deeply with international law in the context of contemporary international events. Students are encouraged to evaluate multiple perspectives – of states, of individuals and of other actors – in order to acquire an expert understanding of the impact of public international law on public and private activities. The topics addressed in the course will include:
- Developing International Law;
- International Legal Personality – the role of states, international organisations and individuals in international law;
- The Application of Treaties;
- Jurisdiction and Immunity from Jurisdiction;
- The Responsibility of States and Other Actors for Breaches of International Law;
- The Use of Force and the Powers of the Security Council of the United Nations; and
- Judicial and Non-Judicial Methods of International Dispute Resolution.
The aim is to acquire an historically-situated understanding of international law and the choices made and not made by international lawyers in the context of current international disputes.
- Refugee Law12.5
This subject offers JD students the opportunity to undertake advanced and specialised study in an important contemporary subset of public law. Refugee law in Australia (as in most of the 147 states party to the Refugee Convention) is inspired and guided by international treaty obligations but anchored in domestic constitutional and administrative law. It is therefore an excellent example of the interdependence of domestic and international public law.
At the heart of the course is the constant tension between international and domestic public law, a tension that exists across the legal system as a whole but is particularly poignant in the context of human rights law. This theme is examined throughout the course as students are introduced to the way in which this struggle has manifested in Constitutional Law (both in the context of interpreting the Commonwealth's broad plenary powers over 'aliens' and 'immigration' and in understanding the limits on Commonwealth power) and Administrative Law (by examining the significant impact which refugee law has had on shaping and pushing the boundaries of administrative law principles). Another central theme is the tension between branches of government; in particular the courts on the one hand and the legislature and executive on the other.
The subject will begin with an historical introduction to international refugee law, before turning to consider the key international instruments for the protection of refugees including the Refugee Convention and Protocol (including the role of the UNHCR); regional instruments; customary international law; and international human rights treaties. The course concentrates primarily on the 1951 Convention, exploring the key controversies in interpreting the refugee definition and extent of international protection afforded to refugees. This provides a framework for considering the implementation of the Refugee Convention in Australian domestic law. The course will also equip students to read, comprehend and contextualise comparative jurisprudence, because in examining the way in which Australian decision-makers have interpreted the definition of 'refugee', students will study high level case-law from across the common law world, as well as some key decisions from civil law jurisdictions.
Refugee law is taught in the format of a 3 hour seminar per week, designed to facilitate deep engagement with the material in the form of class discussion and interaction. In addition, guest speakers will address the students in order to provide an understanding of recent developments and cutting edge issues in refugee law and practice in Australia and internationally.
- Rights and Freedoms in Malaysia12.5
Rights and Freedoms in Malaysia
This subject, which is situated intellectually within the broad ‘Law and Society’ approach to the study of law, gives students the opportunity to develop an advanced and integrated understanding of the historical, political, economic, religious and social context of, and influences upon, the often turbulent contests about the meaning and application of constitutional rights and freedoms in multi-cultural Malaysia. In doing this, the subject also provides opportunities to reflect critically upon the commonalities with, and differences from, the way that rights and freedoms are advanced, protected, or limited in other Westminster-style legal and political systems, including but not limited to, Australia. No prior knowledge of Malaysia is required and no knowledge of Malay language is necessary. Current and abiding issues will be studied through selected case studies covering topics such as civil and political rights in an age of terrorism; freedom of religion in a multi-cultural society; gender and sexuality rights in a plural legal system; the survival of customary laws and the recognition of indigenous native title; rights litigation and the role of courts, lawyers and civil society.
- Sports Law12.5
Sports law has become established as a specialised area of legal interest. Sport generates substantial economic activity and in prominent ways is woven through the social fabric.
This subject is based on the premise that scholars, lawyers and those responsible for the governance of sport must be equipped with the means to understand and evaluate the law which regulates the important and vibrant activity that is sport.
As both a traditional pursuit and an industry of the modern age, sport intersects with law in many different ways, some of which challenge established legal rules and notions of thinking about law. This subject concentrates attention on the circumstances productive of such challenges and explores the reasons for special or unique treatment of sport by the law.
High levels of public engagement with sport can sometimes serve to position sport as an agent of legal change and as an effective means of transmitting legal knowledge and values. Legal practitioners and scholars need to be alert to these processes even if they do not claim a specialised involvement in sports law. Sports law also provides an important connection
between scholarship and legal practice because sport is an activity that presents law in applied and instructive settings.
Study of this different and challenging field will enable legal practitioners and scholars:
- To obtain advanced knowledge of an area of the law having special application to a significant economic and social activity;
- to understand the reasons and justifications for the different legal treatment of sport and to critically evaluate the worth of such justifications; and
- to develop practical understanding and professional skills from exposure to the ways in which law may be applied to a field of activity or an industry.
The principal topics that will be addressed in this subject will be:
- The legal structure and governance of the sporting movement, especially international organisations;
- common forms of player employment contracts and team member agreements in use in Australia;
- the legal status and significance of the rules of play;
- criminal and civil liability for sports injuries including participant to participant responsibility and vicarious liability of employer clubs;
- anti-doping with particular reference to the UNESCO International Convention Against Doping in Sport, the World Anti-Doping Code, the structure and functions of the Australian Sports Anti-Doping Authority, the National Anti-Doping Scheme and illicit drugs policies;
- anti-match-fixing laws with particular reference to sporting integrity units;
- selected legal topics in sports broadcasting and sports marketing including athlete personality rights, the legal status of major sports events and the control of unauthorised broadcasts;
- the lawfulness of labour market rules (e.g. transfer rules, drafts and salary caps) under pro-competition laws including the common law doctrine of restraint of trade and the Competition and Consumer Act 2010 (Cth) Part IV.
- Start-Up Law12.5
This subject will provide students with the legal skills to advise start-up companies on the legal issues those companies are likely to face in their early years of operation. The subject will cover the substantive law relevant to the particular circumstances of a start-up, including intellectual property, privacy, corporations law, the Australian Consumer law, employment law and the tax incentives available for start-up companies in Australia. It will also cover some of the ethical issues involved in advising start-ups, such as the issues associated with advisers taking equity in their clients.
The subject will provide students with the opportunity to develop the specialist practical skills used in advising start-up companies.
- Street Law12.5
Street Law is an innovative subject that involves JD students visiting diverse secondary schools in Melbourne for the purpose of delivering three lessons on legal topics of interest and relevance to young people. Street Law provides a unique opportunity for students to develop their technical and communication skills, while at the same time making a tangible contribution to the community through the delivery of legal lessons to an audience that may not usually have strong avenues of access to legal education or the legal profession.
Students undertaking Street Law will develop and implement fundamental communication skills, including the ability to explain complex legal concepts and information to a non–legal audience. The program will build skills in legal analysis, statutory interpretation and enhance confidence in public speaking. Students will also develop interpersonal skills, the ability to work autonomously and as a member of a group committed to high quality legal education and the ability to think on one’s feet. These skills are essential for working in any legal profession. Street Law students gain experience in implementing community legal education and be a part of the worldwide phenomenon of Street Law. Community legal education is an increasingly important aspect of the work of lawyers in many parts of the profession, particularly the community legal sector.
Participation in Street Law allows students to develop a thorough understanding of the key legal topics law they will teach to secondary school students, based on materials supplied by Melbourne Law School. Specific topics to be covered will change from year to year, and may include broad topics (such as rights frameworks) and/or topics of specific practical relevance to high school students (such as rights and responsibilities on public transport). Students will liaise with teachers at their assigned school to identify the best method of creating lesson plans for particular curriculum needs and context of an individual school. Students then visit their schools to deliver the legal content in a clear and accessible manner in presentations to high school students of diverse academic abilities and backgrounds. Students enrolled in this subject will receive instruction in relevant substantive areas from law school faculty, as well as specialist training in lesson planning and delivery from faculty at the University of Melbourne’s Graduate School of Education. Students will also have the opportunity to develop new materials which may either be used by individual schools and/or by Street Law at MLS in future years.
Longstanding experience of Street Law programs in the US (where it originated thirty years ago) and in other countries indicates that participation in a street law program develops a range of skills in law students including knowledge of and ability to use the law, interpersonal skills, autonomous learning, preparation and organisational skills, critical self-reflection and the ability to think on one’s feet (1). Other research has found that lawyers who participated in a street law program reported that the experience had helped them to explain the law clearly and practically in their professional lives which had in turn increased their confidence and enhanced their public speaking skills (2).
The subject also provides students enrolled with the opportunity to contribute to the intellectual and social development of students from high schools in diverse areas and with diverse student cohorts. While one of the goals of a street law program is to impart substantive knowledge of relevant aspects of the law, it is also to promote in high school students skills in ‘critical thinking and analysis of complex topics through the study of law and justice’ (3). Another goal is to inspire students from non-traditional backgrounds to aspire to university study and possibly also the study of law.
(1) Pinder, K, ‘Street Law: Twenty Five Years and Counting’ (1998) 27 Journal of Law and Education 211 at 226, 230-31.
(2) Katz, B, ‘Practical Law 101’ (2001-2002) 30 Student Lawyer 24 at 26.
(3) Pinder, above n 1, at 212.
- Sustainability Business Clinic12.5
Sustainability Business Clinic
Sustainability Business Clinic provides a practical, clinical experience in which students are supervised in the provision of advice to new and innovating enterprises. Clients will be identified as warranting assistance because they will contribute to community or environmental wellbeing but do not have the current capacity to pay for specialised legal assistance.
Students will undertake 12 days of clinical work based at Melbourne Law School under the supervision of practising lawyers from a partner law firm with expertise in the relevant law (including: climate and energy law; local government, environment and planning law; tort law; property law; and general corporate, transactional and business law). Students will use and refine the legal knowledge and skills acquired during their degree to undertake work on real legal issues and with real clients, and in doing so, will be exposed to the realities of legal practice.
Students will participate in timetabled classes, in which areas of potential reform of the law to improve the prospect of emerging sustainable solutions to social and environmental problems will be discussed. Students will also take part in debrief sessions with a Melbourne Law School academic, where students will evaluate their progress, discuss their perceptions of the law in practice, and reflect on the role of the law and their place in it. Students will be required to maintain a reflective journal during semester to facilitate these discussions.
During timetabled classes, time will be allocated to discuss and analyse the law relevant to client problems, with some direction on skills and legal practice as appropriate. Skills and doctrinal learning will also be undertaken during clinical work time.
- Taxation Law and Policy12.5
Taxation Law and Policy
Taxation is at the heart of contemporary market economies as it is the most significant source of public finance and it is deliberately used to influence the allocation of resources within a community. Focusing upon the Commonwealth income tax, but with reference also to the tax system as a whole, this subject:
- explores the application of public finance principles to the framing of taxation law;
- examines key factors which shape a community's taxation system; and
- develops core legal skills in the application of taxation law to common transactions.
- The Rule of Law in Theory & in Practice12.5
The Rule of Law in Theory & in Practice
Law graduates will become solicitors, in-house counsel, barristers, judges, legislators, public servants, lobbyists, journalists, and teachers. They will work for firms of solicitors, for corporations, for the state, for the people, for themselves, for the United Nations, for think tanks, for NGOs, for schools, and for universities. Whatever law graduates do in their professional lives, they will be expected not only to possess knowledge of the laws, but also to have a particularly well-developed insight into the meaning and significance of "the Law" as a collection of institutional and cultural phenomena. In order to meet this legitimate expectation, law graduates should be capable of speaking and writing in a way that is informed by a reasonably well-developed conception of the Rule of Law, and this whether or not they are called upon to make explicit reference to the Rule of Law. They should be aware of its potential force as a thread that unifies "the Law" in its various institutional and cultural contexts. They should have an appreciation of the theoretical aspect of the Rule of Law. Is it merely a negative virtue, or does it entail positive goods? What has it meant to the greats of political philosophy, ancient (Socrates, Plato, and Aristotle) and modern (Hobbes, Locke, and Nietzsche)? What does it mean to contemporary thinkers? Students should also have an appreciation of its applied aspect. What are the implications of the Rule of Law for private law, for public law, for criminal law, for international law, for legal ethics, and for business regulation? How is the notion of the Rule of Law used in public debate? By whom? To what ends?
- Trade Mark Law12.5
Trade Mark Law
This subject is about the legal protection of trade marks and elements of branding and reputation. It addresses three overlapping components. The first involves a detailed treatment of Australian law – in particular the operation of the registered trade marks regime under the Trade Marks Act 1995 (Cth) as well as the protection of trade marks and other commercial insignia under the common law tort of passing off and under the misleading and deceptive conduct provisions of trade practices legislation. The second component involves the interrogation of the growing body of academic literature that seeks to answer important theoretical and practical questions about trade mark protection from a range of historical, economic, critical and cultural perspectives. In this part of the course, students will be expected to critically evaluate questions regarding, for example, the scope of trade mark protection, the types of insignia that it should cover and what uses should be permitted by third parties in commercial and artistic settings. In addition to these questions, the subject will also look at topics such as the international trend towards expanded trade mark protection and how trade mark law has responded or should respond to new technologies and associated marketing practices. The third component of the course will look at the legal regimes in comparative jurisdictions – in particular, the United States and the European Union. This comparative element of the subject is important. Given that brand marketing is increasingly conducted on an international scale, lawyers are required to have an understanding of the legal protection of trade marks across multiple jurisdictions.
- Why Tax Systems Differ Between Countries12.5
Why Tax Systems Differ Between Countries
In this subject, students will analyse and compare taxation systems in different countries. The subject looks at what tax systems have in common, how they differ and seeks to explain both the similarities and the differences. It will consider the range of taxes that might be implemented to achieve both revenue and non-revenue raising objectives (income taxes, consumption taxes and wealth taxes as well as taxes to influence behaviour e.g. environmental taxes).
The subject will draw on economic theory but will also consider the significance of historical, legal and social differences, the importance of constitutional constraints, the influence of geography and the importance of politics in the tax debate.
- World Trade Organisation Law12.5
World Trade Organisation Law
The regulation of international trade is both a driver and a result of economic globalization. Under the law of the World Trade Organization (WTO), governments agree to liberalise trade, refrain from discriminating between like products from foreign countries, harmonise certain regulatory frameworks, and resolve trade disputes. These laws impact significantly on social and environmental policies.
This subject is designed to provide students with an applied understanding of the law of the World Trade Organization as it operates in real-world social and political context. While developing a sophisticated understanding of the historical and theoretical fundamentals of WTO law and dispute settlement, students also continually reflect upon the relationship between WTO rules and other values, such as environmental protection and human rights.
Topics include an historical introduction to the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization, an analysis of core WTO principles in goods and services and a consideration of the non-economic exceptions to WTO obligations. This requires an indepth engagement with WTO legal agreements and Appellate Body case-law. Based on this knowledge of substantive WTO Law, students examine the WTO dispute settlement system, including its relationship with other parts of the international legal system. A range of more specialized subjects in trade law may in any given year include the regulation of product standards (ie to harmonize labeling and other requirements), the use of sanitary and phytosanitary measures (ie rules on food safety and pests in contexts such as the use of genetically modified organisms), trade policy instruments used by governments to protect domestic industries, subsidies and 'trade remedies'. Major challenges and reform efforts in international trade law, including the stalled Doha round of negotiations, may also be considered.