These articles have been selected to assist Australian law teachers to integrate empirical research into core law teaching. Articles have been included where they:

·      reveal empirical insights into core law units;

·      are focused on the Australian jurisdiction;

·      are accessible to an undergraduate/LLB cohort; and

·      ideally, have been published in recent years (though older materials have been included if there is more limited literature available).

This list has been assembled by A/Prof Alysia Blackham, Melbourne Law School. If you would like to suggest additions or modifications to this list, please email: alysia dot blackham at unimelb.edu.au

1.Administrative Law

Creyke, R & McMillan, J 2004, 'Judicial review outcomes - An empirical study', Australian Journal of Administrative Law, vol. 11, pp. 82-100.

·      https://anzlaw.thomsonreuters.com/Document/Ia6590db59aa011ea89ea91c88091df40/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

Abstract: This article presents the results from an empirical study undertaken by the authors. The main purpose of the study was to find out what happens after a decision is made by a court in a judicial review action to set aside an agency decision. The authors traced the subsequent administrative history of close to 300 cases, by a survey conducted of the legal representatives of the applicants and agencies. The study revealed that in a surprisingly high proportion of cases the ultimate decision of the agency was favourable to the applicant. The article also contains many examples of how individual judicial review cases cause a subsequent change to legislation or agency practice.

2.Civil Dispute Resolution

Grant, G., & Lestrell, E. (2021). Evaluating the impacts of the Civil Procedure Act 2010 (Vic): critical disclosure and unanswered questions. Journal of Civil Litigation and Practice, 10(1), 75-88.

·      https://anzlaw.thomsonreuters.com/Document/If03785da268111ec8704d31e00020c11/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

Abstract: Civil justice reform is hard work. If we go to the effort of taking steps to improve a civil justice system, we want those changes to have the desired effects. Despite this, reform efforts in civil justice often cease at the point a legislative change commences – stopping far short of robust evaluation of impacts and effectiveness. The 10th birthday of the Civil Procedure Act 2010 (Vic) (CPA) in 2021 is a fitting time to explore whether this significant intervention in Victoria's litigation landscape has generated the intended results. This article focuses on the operation and evaluation of the overarching obligation in s 26 to disclose the existence of documents critical to the resolution of a dispute. It examines the objectives of the obligation and, using traditional legal analysis, reviews the deployment of s 26 in case law in the CPA's first decade. The article then turns to alternative ways the operation of the provision might be evaluated. This discussion demonstrates the need for better data and evaluation practice in the assessment of procedural innovations in civil justice systems, a requirement only increased by the urgent and profound changes effected in response to the COVID-19 pandemic.

Grant, G., & Gnanaseelan, R. (2017). Show us the data! Shining a light on settled injury claims. Precedent, 141, 4-7.

• https://search.informit.com.au/documentSummary;dn=054866858390861;res=IELAPA

Abstract: Most injury compensation claims settle - appropriate dispute resolution (ADR) is entrenched and trials are rare. So how can we work out what is happening in the personal injury claims landscape? Data on settled matters are our best window into the civil justice of injury compensation, but access remains challenging.

3.Company Law

Hedges, J., Bird, H., Gilligan, G., Godwin, A., & Ramsay, I. (2017). The policy and practice of enforcement of directors’ duties by statutory agencies in Australia: An empirical analysis. Melbourne University Law Review, 40(3), 905–966 (empirical findings at pp 936 on)

·      https://search.informit.org/doi/abs/10.3316/ielapa.979552375774768

Abstract: The enactment of the civil penalty regime in 1993 introduced a new approach to the enforcement of directors' duties by statutory agencies in Australia. The policy considerations that led to the regime, and which continue to inform current policies on corporate law enforcement, require that: civil enforcement be given primacy over criminal enforcement, with the latter reserved for more serious misconduct; a range of sanctions be calibrated to the severity of the misconduct in accordance with a pyramidal model of enforcement; and sanctions be set at a sufficient level to deter misconduct. This article analyses the extent to which these policies have been applied in practice by reference to a 10-year dataset of 27 civil, 72 criminal and 199 administrative directors' duties matters (involving 360 defendants) brought by the Australian Securities and Investments Commission and the Commonwealth Director of Public Prosecutions. The dataset, which includes data obtained from ASIC and the CDPP that has not previously been published, indicates that such policies have, to a large extent, not been applied in practice. These are significant findings given the central role that enforcement of directors' duties performs in the regulation of corporate activity in Australia and the impact of such activity on society and the economy.

Alice Klettner, Thomas Clarke and Michael Adams ‘Corporate governance reform: An empirical study of the changing roles and responsibilities of Australian boards and directors’ (2010) 24 Aust Jnl of Corp Law 148

·      https://advance.lexis.com/api/document/collection/analytical-materials-au/id/59SB-9N11-F27X-63G8-00000-00?cite=Corporate%20governance%20reform%3A%20An%20empirical%20study%20of%20the%20changing%20roles%20and%20responsibilities%20of%20Australian%20boards%20and%20directors%20(2010)%2024%20Aust%20Jnl%20of%20Corp%20Law%20148&context=1201008&icsfeatureid=1517127&federationidp=F2D4KJ52509

Abstract: This article draws together some of the legal and management literature relevant to the theory and design of qualitative empirical research in the field of corporate governance. It goes on to describe the methodology used by the authors in a project involving interviews with representatives of 67 Australian companies. One of the aims of the project was to examine the changing roles and responsibilities of company boards and directors following legal and regulatory reform. It is only through improving our knowledge of the day to day processes occurring in board rooms that we can really understand the complex relationship between the regulatory framework and the control of corporations in practice. Our evidence was that with regard to the Australian corporate governance framework, over-regulation is not as critical an issue as often suggested, instead the ‘comply or explain’ mechanism is well understood and permits sufficient flexibility for companies to find an acceptable cost-benefit balance.

4.Contracts

Simon Frauenfelder, ‘Implied Terms — Are the BP Refinery Criteria Broken? A Theoretical and Empirical Analysis’ (2023) 38 JCL 103

·      https://advance.lexis.com/api/document/collection/analytical-materials-au/id/6833-JGJ1-JPGX-S0RG-00000-00?cite=Implied%20Terms%20%E2%80%94%20Are%20the%20BP%20Refinery%20Criteria%20Broken%3F%20A%20Theoretical%20and%20Empirical%20Analysis%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20%20(2023)%2038%20JCL%20103&context=1201008&icsfeatureid=1517127&federationidp=F2D4KJ52509

Abstract: When it comes to the factual implication of contractual terms, the five criteria from BP Refinery (Westernport) Pty Ltd v Shire of Hastings have to date held an unquestioned ascendency in Australian law. But that has never been the position in other common law jurisdictions and, more recently, the Privy Council and the Supreme Court of the United Kingdom have questioned and recast the BP Refinery criteria. Should Australian law follow suit? This article answers that question by reference to authority, commentary and an empirical review of every Australian superior and appellate court decision that applied BP Refinery from January 2000 to June 2022. It argues that the ‘reasonable and equitable’ criterion ought to be jettisoned, but the ‘necessity’ and ‘obviousness’ criteria should be retained as cumulative requirements. It is also suggested that this analysis has significance beyond the Australian context.

5.Criminal Law and Procedure

Richard Edney, ‘Crown Appeals Against Sentence in Victoria: Results and Implications of an Empirical Study’ (2005) 79(8) ALJ 513

Christina White, ‘Separating the Inseparable? An Empirical Study of Australia's Approach to Comorbidity and Criminal Responsibility’ (2017) 41 Criminal Law Journal 312

·      https://anzlaw.thomsonreuters.com/Document/I70854c819c7d11ea89ea91c88091df40/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

Abstract: This is an empirical study of how Australian courts deal with comorbidity and criminal responsibility. It evaluates cases where the defence of mental illness/impairment is contested and there is evidence that the defendant's mental state was affected by both intoxication and mental illness. Such comorbidity challenges the division between the two theoretically distinct doctrines. The article first assesses how legal principles are applied, particularly in relation to two key questions: (1) whether drug-induced psychoses constitute a “disease of the mind” and (2) how the effects of intoxication are to be considered when there is a separate underlying illness. On the latter question, three different approaches are identified outside of jurisdictions with specific legislation. Turning next to evidentiary issues, the article evaluates the role of experts, diagnostic uncertainty, and the “longitudinal approach”. Last, the article explores moral fault and character judgments, which take on significance in certain trials. Ultimately, the article reveals an area of law marked by inconsistency and requiring further attention.

Janet Ruffles, ‘The Socio-demographic, Psychiatric and Criminological Characteristics of People Found Not Guilty by Reason of Mental Impairment in Victoria’ (2017) 41 Criminal Law Journal 203

·      https://anzlaw.thomsonreuters.com/Document/I70854a5f9c7d11ea89ea91c88091df40/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

Abstract: The introduction, in 1997, of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) marked a dramatic reform of the system governing the management of people found not guilty by reason of insanity in Victoria. 

Yet despite the major reforms introduced by the Act, there has been little empirical analysis and evaluation of its operation. This study redresses the lack of empirical knowledge by examining the socio-demographic, psychiatric and criminological characteristics of all individuals placed on an order under the Act and managed by forensic mental health services since its enactment. As the Act approaches its 20th year of operation and at a time when there is acute demand for forensic psychiatric services in Victoria, the study may provide a valuable resource to inform forensic mental health policy and practice in Victoria.

Mirko Bagaric, Theo Alexander, ‘The capacity of criminal sanctions to shape the behaviour of offenders: Specific deterrence doesn't work, rehabilitation might and the implications for sentencing’ (2012) 36 Criminal Law Journal 159

·      https://anzlaw.thomsonreuters.com/Document/I70854b2f9c7d11ea89ea91c88091df40/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0

Abstract: There is a considerable gap between the law and knowledge regarding the efficacy of state-imposed sanctions to achieve several key sentencing objectives. Two sentencing objectives which often carry considerable weight in the sentencing calculus are rehabilitation and specific deterrence, despite the fact that neither has been proven to be attainable. This article examines the empirical data on whether specific deterrence and rehabilitation are attainable, and consequently whether they should be retained or abolished as sentencing objectives.

6.Ethics and Professional Responsibility

Vivien Holmes, Tony Foley, Stephen Tang & Margie Rowe (2012) Practising Professionalism: Observations from an Empirical Study of New Australian Lawyers, Legal Ethics, 15:1, 29-55, DOI: 10.5235/146072812801292737

7.Equity (including Trusts)

NB: primarily relates to the law in the UK; Andrew D. Hicks, 'Do Constructive Trusts Deter Disloyalty?' (2018) 69(2) Northern Ireland Legal Quarterly 147

·      https://heinonline.org/HOL/P?h=hein.journals/nilq69&i=155

Abstract: Constructive trusts of disloyal fiduciary gain often are justified by the argument of deterrence. For there to be effective deterrence, two conditions must be satisfied first, potentially disloyal fiduciaries must be sufficiently informed, directly or indirectly, of the properties of the constructive trust; secondly, fiduciaries must respond by accurately weighing the costs/benefits of disloyalty and other options before choosing the option that maximises their self-interest. Typically, one or both of these conditions will not be satisfied. Drawing upon insights from the behavioural sciences we find that fiduciaries contemplating disloyalty generally cannot be expected to be cognisant of the properties of the constructive trust and therefore cannot be influenced by them. Even when known, such properties will not necessarily influence fiduciary behaviour due to the way well-informed fiduciaries are likely to perceive and process the risk that their disloyalty will be detected. The deterrence gains generated by the recognition of a constructive trust are therefore likely to be negligible.

8.Evidence

Mirko Bagaric and James McConvill, 'EVIDENCE LAW: When You Are in a Hole, Stop Digging' (2005) 1(1) Original Law Review 10

·      https://heinonline.org/HOL/P?h=hein.journals/ognlr1&i=12

Abstract: The law of evidence is in an unhappy state. At the time of writing this paper, in Australia alone three jurisdictions (New South Wales, Victoria and the Commonwealth jurisdiction) were (again) re-visiting the issue of what ought to be done with evidence law. There are two main reasons for the disorder in evidence law. The first is that it has no clear principal goal. The search for the truth (or the principle of reliability) is often trumped by considerations of fairness to the accused and the perceived need to discipline police. Secondly, the rules of evidence have not been verified by empirical testing. Lawyers 'think' that it is unwise, for example, to admit prior convictions but where is the 'evidence' for this? The key point we make in this paper is that before a rule of evidence is employed in the legal system it should be subject to the same degree of rigor and analysis as facts in issue in a case. A fact in issue cannot be established unless it is proven by the existence of (admissible) facts. The same approach should be adopted at the 'meta-stage' of evidence law, which consists of the rules (such as the hearsay and similar fact evidence rule) that determine the admissibility of specific items of evidence. Quite simply, we should have an evidence based approach to the development of the rules of evidence. Before a rule of evidence is adopted there must be demonstrable 'evidence' that it will in fact achieve its stated purpose. Absent such proof we are forced back to the default position - all relevant evidence is admissible.

Goodman-Delahunty, Jane, Martschuk, Natalie, Cossins, Annie, ‘What Australian jurors know and do not know about evidence of child sexual abuse’ (2017) 41 Crim LJ 86

·      https://research-repository.griffith.edu.au/bitstream/handle/10072/414712/Martschuk679112-Published.pdf?sequence=2

Abstract: A total of 1,931 non-empanelled jurors in the greater Sydney metropolitan area responded to a series of brief statements about forensically relevant issues common to many child sexual abuse cases. Jurors indicated the extent of their agreement with statements concerning typical evidential features of child sexual offences, children’s responses to sexual abuse, and children’s suggestibility and reliability as witnesses. From these responses, the prevalence of misconceptions about child sexual abuse among a large contemporary Australian jury sample was derived. The results clarified what jurors know, what they do not know, and topics about which they are unsure and require guidance. More than half of the jurors did not know or were uncertain of three issues central to child sexual abuse trials, namely evidence contemporaneous with the alleged abuse, the reliability of children’s evidence, and children’s post-abuse reactions.

9.Federal and State Constitutional law

Olijnyk, A., & Appleby, G. (2018). Constitutional Influences on State and Territory Lawmaking: An Empirical Analysis. Federal Law Review, 46(2), 231-258.

·      https://doi.org/10.1177/0067205X1804600203

Abstract: This article focuses on an under-studied aspect of the constraints emerging from ch III of the Australian Constitution: the effect of those constraints on law- and policy-making within the executive. Drawing on interviews with key actors in state and territory lawmaking, this article uses three case studies to examine the way in which ch III constraints have influenced the development of law and policy. The actions of governments in each case study are evaluated against a normative model of constitutional deliberation by the executive. The article concludes by identifying the legal, political and personal factors that influence the way in which state and territory executives engage with constitutional issues.

Lynch, A., Opeskin, B., Le Mire, S., & Appleby, G. (2019). Contemporary challenges facing the Australian judiciary: An empirical interruption. Melbourne University Law Review, 42(2), 299–369.

·      https://search.informit.org/doi/10.3316/agispt.20191001017767

Abstract: The structures that regulate and support the Australian judiciary reflect and serve the traditional judicial values of independence, impartiality and the rule of law. Yet modern society places emphasis on an additional range of values that are expected of government and public institutions. These contemporary values include diversity, transparency, accountability and efficiency. Reforms to introduce regulatory and support structures that prioritise and facilitate these values in the judicial arm has proved challenging and, sometimes, contentious. This article reports on a survey of Australian judicial officers (n = 142) from across different jurisdictions. Participants were asked what they considered to be the most pressing challenges that face the various levels of the Australian judiciary, and whether the current regulatory and support environment achieves international best practice. The responses provide a nuanced picture of the state of the modern Australian judiciary as it appears to those within it. The study facilitates an understanding of the degree to which judicial officers are satisfied with the current legal and regulatory framework and, where they are dissatisfied, the nature of their disquiet. While not seeking to offer complete resolutions to the many issues canvassed, the data and analysis presented in this article serve as an interruption to regulatory and academic studies of the Australian judiciary, with the potential to illuminate and re-orientate the reform conversation in light of the judicial perspective on these various issues.

Patmore, G. (2012). Justifications for Initiating a Constitutional Amendment to Establish an Australian Republic: An Empirical Study. Federal Law Review, 40(1), 89-110.

·      https://doi.org/10.22145/flr.40.1.4

Abstract: Under section 128 of the Australian Constitution federal parliamentarians have the power to initiate constitutional amendments. This paper examines the justifications of politicians and public figures for proposing a referendum to introduce an Australian republic. From interviews conducted between 2008 and 2011, three important justifications for proposing change emerged: promoting a new national identity; success in passing a referendum and in re-election; and timeliness. An examination of these justifications raised additional questions, including: what reasons did politicians and public figures think were significant? How did their justifications form and develop? What were the reasons that inspired political action? The reasons for initiation of a referendum for a republic, and recognition of indigenous people in the Australian Constitution are also compared. The paper adds to the literature on formal constitutional change, and also offers a critique of the field.

Blackham, A. (2023). Promoting Innovation or Exacerbating Inequality? Laboratory Federalism and Australian Age Discrimination Law. Federal Law Review, 51(3), 347-371.

·      https://doi.org/10.1177/0067205X231187971

Abstract: According to laboratory federalism, federal systems can promote governmental innovation and experimentation, while containing the risks of innovation to only one jurisdiction. However, it is unclear whether these benefits are realised in practice and whether states are actually effective ‘laboratories’. This article evaluates the extent to which laboratory federalism is occurring in practice, focusing on a case study of age discrimination law in Australia. Drawing on related ideas of democratic experimentalism; legal doctrinal analysis of age discrimination law in the Australian states and territories, and at the federal level; and qualitative expert interviews with 66 Australian respondents, I map the potential and limits of laboratory federalism in advancing age equality. I argue that, in this particular context, the benefits of experimentation may be outweighed by the resulting difficulties of enforcing age discrimination law, exacerbating inequality in practice. The federal structure has led to a confused and confusing patchwork of legal regulation. There is therefore a need for stronger federal structures to facilitate mutual learning and better realise the benefits of laboratory federalism.

10.               Property

11.               Torts

Kylie Burns, ‘The gender of damages and compensation’ (2019) 151 Precedent 9–13.

·      https://search.informit.com.au/documentSummary;dn=340243759991318;res=IELHSS

Abstract: Is the Australian law of tort and compensation gender neutral in the way it allocates damages and compensation for injuries? Do all those who suffer compensable injuries receive appropriate compensation for their injury via common law damages or via statutory compensation (or a combination of the two)? Are the only relevant variables the type of injury; whether the system of compensation is a fault or no-fault system; the location where the injury occurred; and how it occurred?

Christine Parker and Vibeke Lehmann Nielsen, ‘Do Businesses Take Compliance Systems Seriously? An Empirical Study of the Implementation of Trade Practices Compliance Systems in Australia’ (2006) 30(2) Melbourne University Law Review 441

·      https://heinonline.org/HOL/P?h=hein.journals/mulr30&i=449

Abstract: Since 1991, the Australian Competition and Consumer Commission has actively encouraged, and sometimes forced, Australian businesses to implement internal competition and consumer protection compliance programmes in order to improve compliance amongst a wider range of businesses than can be reached by enforcement action alone. Have Australian businesses implemented the type of internal management systems and controls that the Australian Competition and Consumer Commission, industry best practice and research evidence see as desirable for trade practices compliance? This article presents findings from a survey of 999 of the largest Australian businesses (as determined by number of employees) on the extent to which they have implemented trade practices compliance systems. Outcomes from the study demonstrate that, on the whole, the implementation of trade practices compliance systems is partial, symbolic and half-hearted. Nevertheless, enforcement action by the Australian Competition and Consumer Commission improves the level of implementation of compliance systems.

Kylie Burns, ‘It’s not just policy: The role of social facts in judicial reasoning in negligence cases  (2013) 21 TLJ 73

·      https://advance.lexis.com/api/permalink/a63dea3d-34b2-4ad4-a451-ffe17f36eeff/?context=1201008&federationidp=F2D4KJ52509

Abstract: Negligence cases are by nature intimately concerned with the behaviour of people and institutions, and the nature of the world and society. Judicial statements about these matters used as part of judicial law making might be called social facts (SF). Despite apparent widespread judicial use of SF from the earliest of negligence cases, the role of SF in judicial reasoning in negligence cases is relatively unexplored. The examination of these kinds of statements in Australian negligence cases has tended to be subsumed into discussions about the use and permissibility of ‘policy’ in judicial reasoning. This article examines more closely how judges use SF in negligence cases. Part 1 of this article identifies the range of roles that SF play in judicial reasoning in negligence cases. It argues that SF are not just used by judges as part of policy reasoning. Part 2 argues that the use of ‘common sense’ SF in negligence cases may give rise to issues of judicial accuracy and potential judicial error in negligence cases. Part 3 discusses issues of proof in relation to SF in negligence cases and argues that there is a lack of clarity in relation to the legal and evidential basis for judicial use of SF and that reform is required. Finally, Part 4 discusses the need for ‘descriptive’ theories of judicial negligence decision-making to consider judicial use of SF, and suggests that existing theoretical accounts of tort law, particularly those relating to rights and corrective justice, do not appear to adequately account for judicial use of SF in tort cases

12.               Labour and Equality Law

Carolyn Sutherland, ‘Streamlining enterprise agreements to reduce complexity: An empirical assessment’ (2016) 29 AJLL 25

·      https://advance.lexis.com/api/document/collection/analytical-materials-au/id/5JVV-XY31-FCYK-248N-00000-00?cite=Streamlining%20enterprise%20agreements%20to%20reduce%20complexity%3A%20An%20empirical%20assessment%20(2016)%2029%20AJLL%2025&context=1201008&icsfeatureid=1517127&federationidp=F2D4KJ52509

Abstract: Since the advent of enterprise bargaining more than two decades ago, both Coalition and Labor Governments have exhorted the bargaining parties to create simple, streamlined agreements to facilitate communication of workplace entitlements and obligations to employers and workers. This study empirically examines the texts of enterprise agreements to investigate the impact of this policy of simplicity on the level of detail (density) in agreements made in the higher education and fast food sectors between 1993 and 2014. The empirical findings point to divergent trends across the two sectors: whereas fast food agreements became slightly more streamlined, the density of higher education agreements has nearly doubled over the time period. The analysis suggests that regulatory changes have had some influence on these shifts, particularly the changes to the benchmarks that were designed to protect workers from disadvantage and the brief introduction of extensive restrictions on content. To some extent, the divergent trends in the two sectors may be explained by the strong union presence in the higher education sector (and a corresponding absence in the fast food sector) and the efforts of unions to protect and improve upon existing employee entitlements. This suggests that simplicity sometimes comes at a cost of fairness for employees. While simplicity should not trump fairness as a policy goal, it is important that the goals of simplicity and fairness are not seen as mutually exclusive. It is of course possible to retain and expand upon worker benefits in enterprise agreements, while at the same time consolidating the expression of those benefits to ensure that agreements do not become increasingly dense over time.

Dominique Allen, ‘An Evaluation of the Mechanisms Designed to Promote Substantive Equality in the Equal Opportunity Act 2010 (Vic)’ (2021) 44(2) Melbourne University Law Review 459

·      https://law.unimelb.edu.au/__data/assets/pdf_file/0006/3861663/01-Allen-459.pdf

Abstract: As a society, we have learnt a great deal about the nature of discrimination in the four decades since it was first prohibited, yet our laws have not evolved despite being criticised for aiming at formal equality and failing to address discrimination on a systemic level. In 2010, Victoria enacted legislation aimed specifically at promoting substantive equality and targeting systemic discrimination. Using doctrinal and empirical methodologies, this article assesses the impact of the novel mechanisms in the Equal Opportunity Act 2010 (Vic) which were designed to promote substantive equality: the objects clause; the definitions of direct and indirect discrimination; the obligation to make reasonable adjustments; special measures; and the duty to eliminate discrimination, sexual harassment and victimisation.

Allen, D., & Orifici, A. (2022). Understanding Pregnancy Discrimination: A Pilot Study of Victorian Women's Experiences at Work. Monash University. 

·      https://issuu.com/monashbusinessschool/docs/understanding_pregnancy_discrimination_allen_orifi

13.               Family Law

Belinda Fehlberg, Christine Millward and Monica Campo ‘Shared Post-separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 AJFL 247

·      https://advance.lexis.com/api/document/collection/analytical-materials-au/id/58XH-6B91-JG02-S135-00000-00?cite=Shared%20Post-separation%20Parenting%20in%202009%3A%20An%20Empirical%20Snapshot%20(2009)%2023%20AJFL%20247&context=1201008&icsfeatureid=1517127&federationidp=F2D4KJ52509

Abstract: Shared post-separation parenting has gained a new profile in Australia in recent years, particularly since 2006. Yet empirical research conducted prior to 2006 suggested that shared care was uncommon and there were particular characteristics of families that adopted this form of parenting arrangement. This article draws on in-depth interviews with separated parents to explore shared care arrangements post-2006. Shared carers who reported positive experiences described mutually agreed parenting arrangements and generally reported favourable outcomes for their children. They also demonstrated similar characteristics to those in workable shared care arrangements pre-2006, in particular, a cooperative and child-focused approach to post-separation parenting, paternal competence and no or minimal involvement of the legal system. Conversely, shared carers reporting negative experiences generally said there had been disagreement over their arrangements, described poorer outcomes for their children and had little in common with their pre-2006 counterparts. There were also clear gender patterns in the way parents reported shared care. Most fathers in our sample reported satisfaction with shared care and appeared focused on the 'fairness' of shared care to them and/or their children. In contrast, mothers were generally less satisfied with shared care and appeared more focused on specific concerns about children's well-being.

Belinda Fehlberg and Lisa Sarmas, ‘Australian family property law: ‘Just and equitable’ outcomes?’ (2018) 32 Australian Journal of Family Law 81

·      https://www.lexisnexis.com.au/__data/assets/pdf_file/0008/340892/Australian-family-property-law-Just-and-equitable-outcomes-2018-32-AJFL-81.pdf

Abstract: In this article we focus on the broad discretion under Australia’s Family Law Act 1975 (Cth) to reallocate interests in property of spouses and separating de facto partners. We look at previous empirical research on the discretion’s operation and consider options for change. We identify that there is a lack of up-to-date empirical research data on the discretion’s operation, and that there is potential risk and possibly limited effect associated with legislative reform in this area. Yet the consistent empirical research finding that women, particularly mothers with dependent children, experience significant economic disadvantage post-separation leads us to see some merit in legislative reform that identifies the need to provide for the material and economic security of the parties and their dependent children as key factors to be considered when making property orders.