Master of Construction Law

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

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

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

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

This subject is designed for construction law students without prior legal training (the alternate subject LAWS70176 Construction Law is for students who have a law degree). It provides an overview of the broad spread of the construction law curriculum, from the statutory and common law landscape through legal aspects of project procurement and contracting to dispute avoidance and resolution options. This subject also provides detailed treatment of legal issues specific to construction law such as variations, quality, time and payment. The seminar format is supplemented by exercises to develop students’ skills in contract preparation and writing legal hypotheticals, and includes sessions on construction law research tools and techniques.

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

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

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

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

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

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

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

Construction projects produce difficult legal questions about remedies. Practitioners need to be confident in their understanding of the remedies available under many causes of action. This understanding is greatly beneficial in construction disputes, but also in the negotiation and drafting of construction contracts. The lecturers’ experience draws not only on their rigorous understanding of black letter law, but also on extensive practising careers.

Indicative list of principal topics:

• Damages for breach of contract (including for defective work)
• Penalties (including liquidated damages)
• Remedies under the Australian Consumer Law
• Quantum meruit claims
• Remedies for proprietary torts
• Equitable remedies for breach of fiduciary duty
• Temporary injunctions

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

This subject will explore construction project risk in an expansive and holistic way, offering students the opportunity to understand the political and commercial drivers that not only inform the allocation of risk but, also, influence the culture of the construction industry more generally. As many recent studies have highlighted, it is these cultural issues which are at the heart of many of the ills faced by construction procurement; this subject provides a uniquely valuable opportunity to diagnose those ills and to consider ways of addressing them.

Students will study what construction and project risks are, as well as (often overlooked) behavioural and documentation risks. Students will develop an understanding of the various approaches – philosophical, theoretical and commercial – for measuring and allocating risks between the parties involved in a construction project.

The subject encourages students to contemplate reform in the way that the construction industry approaches risk by interrogating whether current construction law, construction contracts and habits and behaviours are adequate and appropriate for the efficient and cost-effective management of risks.

Indicative list of principal topics:

• What is ‘risk’?
• Philosophy of risk allocation
• Stakeholder views of risk (private sector principal’s, government’s, economists’, contractors’, consultants’, financiers’ etc)
• Collaborative risk management
• ‘Megaproject’ risk (including public private partnerships)
• The insurance interface
• Emerging risks (eg pandemics, climate change, trade wars)
• Industry behaviour and culture

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

Australia is one part of a global movement toward clean energy, including energy generation, supply chains and transportation.

The kinds of projects being delivered are diverse, including those required to produce clean energy, and all ‘supporting’ projects crucial to the energy transition such as storage and mining. A few examples include:

• ‘big batteries’, both artificial (such as lithium-ion battery terminal stations), natural (such as pumped hydro) and hybrid (such as compressed air energy storage) storage solutions
• hydrogen generation and supply chains
• ancillary industries including electrolyser manufacturing and ammonia production facilities
• wind farms, both onshore and offshore
• industrial scale solar arrays
• carbon capture and storage technologies
• increased transmission interconnectivity, including overland transmission lines and subsea transmission cables
• projects which combine these elements (eg solar or wind farms in a remote location, linked to the place of supply by subsea cables).

The law (private and public) and practice relating to the successful planning, procurement, risk allocation and delivery of these projects is equally diverse and evolving. Certain aspects of that law and practice is unique to Australia, however Australia's clean energy future is part of global technological ecosystems and supply chains, and global trends continue to influence the legal and practical issues arising from these kinds of projects.

This subject seeks to provide students with an understanding of the private and public law affecting these projects individually, and the overarching themes that connect these projects as part of a global trend.

This subject seeks to equip lawyers and industry professionals with the expertise required to provide appropriate advice, or suggest regulatory reforms, in relation to projects in the clean energy transition. In particular, it will explore the issues which arise due to the untested technologies implemented in this transition, a new and evolving landscape of regulatory frameworks, and ancillary issues such as supply chain security, local community engagement and the rise of governments mandating ‘friend-shoring’.

The subject will take students through a life cycle of a clean energy project from initiation through to resolving disputes and decommissioning.

Indicative list of principal topics:

• Introduction to the clean energy transition and overview of the kinds of projects that are involved.
• Project funding, equity and ownership structures, insurance issues on projects involving nascent international supply chains and cross-border joint ventures.
• Planning, approvals and environmental regulation, and project envelope, including various Australian state/territory and Commonwealth environmental and planning regulatory regimes, land rights and water access issues, and potential application of royalty regimes.
• Procurement and contracting models, risk allocation issues and delivery risks on a project type-by-type basis, including hypothetical risk scenarios and lessons learned from Australian and international jurisprudence.
• Transmission and connectivity issues, such as high-voltage above ground transmission, subsea cables, trucking and pipeline reform, such as State-based pipeline legislation and Commonwealth Heavy Vehicle National Law and Regulations.
• OH&S framework, including Safety on-site: construction sites, sites involving handling of dangerous substances, and Australian state/territory-based dangerous goods legislation.
• International investment and trade, including Investor-state dispute settlement and international shipping standards for nascent assets (eg, liquified hydrogen) and the UN Convention on the Carriage of Goods by Sea.

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

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

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

Indicative list of principal topics:

• Delay and disruption – the distinction

• Extensions of time regimes and liquidated damages (including cross-jurisdictional perspectives and reform opportunities)

  • Purpose and benefit of an extension of time
  • Notices
  • Time at large
  • The prevention principle
  • Float
  • Types of delay (excusable, non excusable and concurrent)

• Delay analysis

  • What is delay analysis?
  • Methods of delay analysis

• Quantification of loss caused by delay

  • Direct additional costs
  • Preliminaries / site overheads
  • Off-site / head office overheads
  • Loss of profit
  • Inflation
  • Finance charges / interest
  • Interest

• Quantification of loss caused by disruption

  • What is disruption?
  • Entitlement to payment for disruption
  • Methods to assess loss caused by disruption
  • Acceleration

• Record keeping in relation to delay and disruption, including deployment of modern technologies

• Global claims for delay and disruption

  • What are global claims
  • Are global claims permissible
  • Causation based on inference
  • Proving a global claim

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

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

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

Indicative list of principal topics include:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

This subject provides a detailed overview of construction law, practice, and dispute resolution in five representative Asian jurisdictions: the People’s Republic of China, Taiwan, Hong Kong SAR, Singapore, and South Korea. Through detailed explanation, analysis and case studies, students will gain an advanced understanding of the key features of these topics in each jurisdiction, both in isolation and in a comparative context.

Students will develop their capacity to operate and advise in and across these jurisdictions as well as deriving lessons for application in their home jurisdictions with reference to:

• Foundations of international business operations, infrastructure development, financing, and legal frameworks, with a focus on Asian markets and global dispute resolution trends.
• Hong Kong's legal and contractual landscape, dispute resolution mechanisms and the NEC (New Engineering Contract).
• Singapore's business, legal, and development landscape, public-private collaborations, and sustainable practices.
• Taiwan’s legal framework, risk management, procurement, and dispute resolution mechanisms.
• Korean construction law and practice, industry fundamentals, procurement and contracts, civil law, and public-private partnerships.
• Legal, regulatory, and operational aspects of doing business and carrying out construction projects and resolving disputes in China.
• Detailed case studies on financing, construction, and dispute resolution for the Beijing No. 4 Metro Line, Seoul's Anhwa school project in South Korea, New Engineering Contract (NEC) water and road projects in Hong Kong, Taiwan's High-Speed Rail project connecting Taipei and Kaohsiung, and the Singapore Sports Hub project.

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

Increasingly, construction lawyers and professionals earn their living working internationally. In so doing, they not only transition legal systems and encounter different approaches to their practice, they also become exposed to the challenges of working with stakeholders from different national cultures.

National culture is seen as a contentious, intangible and immutable phenomenon, particularly in the international construction sector, and is often only considered at a superficial level and very often consigned to the “too difficult tray”. This subject provides an in-depth understanding of the influence of national culture in the context of a number of troublesome issues that repeatedly manifest themselves on construction projects whether in relation to procurement strategies, commercial risk management, time and money claims or dispute resolution.

The subject

• explores the necessity for national culture (and culture more broadly) to be considered in the adoption of potential solutions to these troublesome issues;
• explores the hegemonic theories relating to national culture and explain why these theories are of limited efficacy in relation to many of the troublesome issues on international construction projects;
• unravels the tangle of national culture complexity that industry practitioners often experience on international construction projects and will provide students with a theoretical construct to enable them to manage these troublesome issues more effectively; and
• sets out a theory, grounded in industry, that enables students to understand whether or not national culture is the root cause of the problem and, if not, what the potential solutions to the problem might be.

Using innovative teaching and learning approaches (including Object Based Learning and Rich Pictures in Construction Law), this subject explores the troublesome issues that manifest themselves on international construction projects from an industry-focused global perspective.

The subject will draw extensively upon authentic research and industry experience that captures global perspectives on the subject matter including the use of live case studies from projects in Asia, Europe, the Middle East and South America.

Indicative list of principal topics:

• National culture and the tribal nature of the international construction industry.
• The critical analysis of different procurement strategies and contractual arrangements on international construction projects and the potential for a more collaborative approach.
• Commercial risk management on international construction projects, including: choice of law, unforeseen or latent conditions, liquidated damages, caps on liability, consequential loss and dispute resolution mechanisms.
• More effective approaches to the preparation and evaluation of time and money claims on international construction projects including forensic delay analyses.
• The potential of the digital transformation, in terms of, for example, Smart Contracts, Building Information Modelling (“BIM”) and other digital / sociolegal interventions to change the culture of the international construction industry in a construction law and practice context and how the digital transformation and these interventions could be utilised to avoid and resolve disputes.
• The influence of national culture on the commercial and legal aspects of international construction projects and the application of a constructivist grounded theory approach to enable practitioners to manage the perceived challenges of national culture more effectively.

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

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

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

Indicative list of principal topics:

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

If this area of study interests you, LAWS70139 International Construction Law, LAWS70450 Global Perspectives on Construction Law and LAWS70314 Principles of Construction Law have both been designed to cater to students from a variety of backgrounds.

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

In this class we discuss the active resolution of disputes in construction projects by mediation and other alternative dispute resolution processes, as well as international and domestic arbitration and litigation processes. Our subject also involves guest lecturers who have specialist, cutting-edge experience in dispute avoidance and alternative dispute resolution techniques.

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

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

Indicative list of principal topics:

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

Students interested generally in the Construction Law program in the Melbourne Law Masters are encouraged to explore the Construction Law subject selection PDF guide.

View detailed information in the Handbook

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

Indicative list of principal topics:

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

View detailed information in the Handbook

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

Indicative list of principal topics:

• Purposes of consumer protection law

• The regulatory toolkit

• Common law doctrines underlying the legislative regime

• Enforcement and remedial strategies.

• Key consumer protection regimes under the Australian Consumer Law, Australian Securities and Investment Commission Act 2001 (Cth) and the National Consumer Credit Protection Act 2009 including:

  • Misleading or deceptive conduct
  • Unconscionable conduct
  • Interest rate caps and responsible lending
  • The specific regulation of small amount loans
  • Unfair contract terms.
  • Consumer guarantees and implied terms

View detailed information in the Handbook

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

Indicative list of principal topics:

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

View detailed information in the Handbook

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.

Indicative list of principal topics:

• Sources and dynamics of conflict in domestic and international business contexts
• Strategic approaches to negotiation and deal-making
• Negotiation planning, objectives and measures of success
• Distributive, integrative and mixed-motive negotiation
• Negotiation theory and its application in professional practice
• Bias, influence and decision-making in negotiations
• Value creation, trade-offs and negotiated outcomes
• Negotiation tools, techniques and professional confidence
• The role of contractual terms in commercial negotiations
• Verbal, non-verbal and cross-cultural communication
• Perspective-taking, empathy and relationship management
• Ethical, cultural, economic, psychological and emotional dimensions of conflict and dispute resolution

View detailed information in the Handbook

This subject focuses on the legal context and considerations of property, crime and financial liability insurance, including categories of loss and liability, disputed coverage and claims handling issues.

The course is relevant to operational business risk management and will cover insurance products such as material damage and resultant business interruption, public and products liability, professional indemnity, errors and omissions, crime and trade credit insurance.

This subject has an Australian focus.

Indicative list of principal topics:

• What is insurance and how does it work? How does it compare/contrast with other modes of risk transfer/funding?
• Commercial property and business interruption insurance
• Public and product liability insurance: the nature of "occurrence-based" liability insurance
• Financial liability insurances, professional indemnity and directors & officers insurance (PIDO), errors and omissions insurance (ENO), civil liability
• Trade credit, insolvency insurance and cyber-risk insurance
• Strategies and tactics for dealing with insurers: resolving underwriting and claim disputes

View detailed information in the Handbook

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

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

View detailed information in the Handbook

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

This subject is taught from selected cases rather than textbooks.

Indicative list of principal topics:

• Breach of conditions, including what makes a promissory term a strict condition

• Non-fulfilment of conditions precedent, and associated promissory obligations

• Breaches of intermediate terms, and what makes them sufficiently serious to justify termination

• Repudiation in its different forms

• Breach of time obligations, and the use and consequences of Notices to Perform/Complete

• Express termination clauses—the different principles concerning their operation, and ‘compare and contrast’ the principles concerning termination at common law

• Possible limits on an aggrieved party’s right to terminate through:

  • Election/affirmation
  • Estoppel
  • Breach or an absence of readiness, willingness and ability to perform on his/her own part
  • Relief against forfeiture

• Remedies accompanying effective or attempted terminations, including:

  • Principles of quantifying expectation damages at common law
  • Limited rights to damages on termination pursuant to an express clause
  • Contractual rights to remuneration accrued due prior to the termination
  • Exceptional limitations on the recoverability of contractual remuneration.

View detailed information in the Handbook

This subject focuses on the effectiveness of legislation. Legislation plays a fundamental, and ever more significant, role in our legal systems. Many lawyers and policy analysts advise on proposals for legislative change. But this is often done without explicit frameworks for assessing the effectiveness of legislation, the ways in which legislation has failed or risks failing, and strategies and design options for reducing the risk of failure.

This course explores what it means for legislation to be effective. It takes as its starting point the critical analysis of failed laws, identifying common process errors and design flaws that contribute to such failures. It explores some common criticisms of legislation: that it is too uncertain, too prescriptive, too inflexible, too complex. It moves on to explore law reform strategies and legislative design options that can reduce the risk of failure, and the institutional prerequisites for those design options to be effective. Particular attention is paid to the challenges of designing legislation in the context of imperfect information and a changing environment, including the implications of technological change and the opportunities and challenges of automated decision-making, including use of algorithms and AI.

The subject will be of considerable interest to Australian and international students with an interest in the law reform and policy process. It is especially well suited to students with practical experience in these fields.

Indicative list of principal topics:

• What it means for legislation to be effective,
• Approaches to assessing the effectiveness of legislation,
• Analysing the nature and causes of legislative failure,
• Understanding interdependencies between legislation and the institutions that apply it,
• Strategies for enhancing the effectiveness of legislation,
• Complex legislation: causes of complexity and design options for reducing complexity,
• Designing legislation for an uncertain and changing world.

View detailed information in the Handbook

Employment contracts have been a major source of litigation in recent years and have also been the subject of a number of very significant cases. Indeed, whilst Australian labour law has become increasingly dominated by statutory provisions, the common law contract of employment continues to provide the fundamental principles that govern the individual employment relationship.

This subject examines the evolving law of employment contracts, and other related kinds of personal work contracts. Drawing on recent cases as well as leading articles by Australian and international scholars, the lectures consider several key questions. These include determining employment status and type; express and implied contract terms and how they are construed; employer and employee duties; non-compete clauses; termination and damages. The subject also looks at the interaction between employment contracts and the Fair Work Act 2009 (Cth). The subject seeks to combine discussions of the practical realities of contracting with a broader analysis of the underlying assumptions in current law.

Indicative list of principal topics:

• The scope of employment regulation: which work relationships are covered?
• The regulation of independent contracting, such as agency relationships
• Determining the type of employment: full time, part time and casual work
• The content of the employment contract: express terms
• The content of the employment contract: implied terms
• Non-compete clauses and restraints of trade
• Variation and flexibility in the employment contract
• Termination and remedies at common law
• The relationship between contracts, awards and agreements

View detailed information in the Handbook

The energy transition – a key plank in achieving Australia's net zero targets – represents a generational challenge for energy markets.

Transitioning Australia's energy system to renewable energy and storage involves a complex group of stakeholders, with policy makers, regulators, investors, energy providers and consumers grappling with multiple – often conflicting – objectives.

This subject aims to give students a clear understanding of the structure and principles of Australia's energy markets in the context of achieving the energy transition. Focusing on the Australian electricity sector, it will examine the foundations of our energy markets and the pathway for renewable energy, together with the nature and scale of the energy transition and current policy debates.

Key legal elements of the subject include the structure and legal framework for the electricity supply industry and markets, the legal framework supporting investment in renewable energy, principles and policy frameworks underpinning the energy transition, the role of government and electricity market reform initiatives.

This subject has an Australian-focus and is aimed at students with an interest in energy law and legal practice, energy markets, energy regulators and energy policy and reform.

Indicative list of principal topics:

• The structure of, and key participants in, the electricity supply industry across generation, transmission and retailing

• Legislative and regulatory framework for the National Electricity Market, including market bodies and rulemaking

• Key principles of the wholesale and retail electricity market, including typical wholesale market contracting and trading

• The legal framework for investment in renewable energy and storage

• The nature, scale and objectives of the energy transition

• Key principles underpinning the development of renewable energy and storage, including government support contracts

• Key principles in the regulation of electricity transmission systems, including regulated pricing, open access principles and renewable energy zones

• Legal principles and policy frameworks underpinning energy transition steps, including the role of government

• Legal issues in implementing a just transition

• Current electricity market policy debates and reform initiatives

View detailed information in the Handbook

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

Indicative list of principal topics:

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

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

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

View detailed information in the Handbook

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

Indicative list of principal topics:

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

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

View detailed information in the Handbook

This is a foundational subject in the Melbourne Law Masters (MLM) which is compulsory for graduates of disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.

The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.

The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer.

Indicative list of principal topics:

• How to read and analyse a case
• The concept and use of precedent
• Evolution of a common law principle
• Common law issues: judicial activism, separation of powers
• The role of the High Court and an overview of the Constitution
• The relationship between the Constitution, case law and statute law
• Influences of other sources of law on the common law
• How to read and analyse statutes
• Approaches to statutory interpretation
• Legal writing skills and expectations in the MLM program.

Important information about this Subject

This subject is an important foundational skills-based subject for many common-law focussed subjects in the Melbourne Law Masters. We recommend Masters students needing an introduction to the common law enrol in this subject when they first start their program of study. For most graduate diploma students, Australian Legal Process and Legal Institutions (ALPLI) is the alternative intensive offering.

All students enrolled in the following common-law focussed Masters courses are strongly recommended to take LAWS70217 Fundamentals of the Common Law (if you don't already have prior professional or educational background in the common law):

• Master of Banking and Finance
• Master of Commercial Law
• Master of Construction Law
• Master of Employment and Labour Relations Law
• Master of Energy and Resources Law
• Master of Health and Medical Law
• Master of Intellectual Property Law
• Master of Private Law
• Master of Laws (if you wish to focus on one of these common-law areas above)

More information on course planning in the Melbourne Law Masters.

View detailed information in the Handbook

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

Indicative list of principal topics:

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

View detailed information in the Handbook

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

Indicative list of principal topics:

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

View detailed information in the Handbook

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

Indicative list of principal topics:

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

View detailed information in the Handbook

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

Indicative list of principal topics

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

View detailed information in the Handbook

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

indicative list of principal topics:

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

View detailed information in the Handbook

International Legal Internship allows students to gain credit for undertaking advanced legal research and analysis on an approved international internship of at least five weeks of full-time work in an approved international institution or organisation. This subject is focused on providing students with an opportunity to engage with legal and policy issues in contemporary society through work experience and further develop oral and written communication skills. Students are required to secure and fund their internships personally.

Students are encouraged to discuss their internship proposals with the subject coordinators. Students who successfully enrol in International Legal Internship must arrange a meeting with at least one of the subject coordinators both prior to their internship and upon completion, to develop a better understanding of research and the role of international institutions in international law and relations.

Important information about enrolling

This subject is not available for self-enrolment but is an application-based enrichment subject, which means prospective students must apply to enrol.

More information about the application process can be found on the MLM International Legal Internship webpage.

View detailed information in the Handbook

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

View detailed information in the Handbook

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

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

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

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

Successful completion of this subject, and a complete attendance record to all sessions, is expected to be credited for two-thirds of Australian Mediator and Dispute Resolution Accreditation Standards training, under the auspices of the Resolution Institute, which will offer students the opportunity to study the remaining third required for AMDRAS accreditation.

Indicative list of principal topics:

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

Note, all enrolled students will be expected to demonstrate a high level of English language proficiency in order to actively and effectively engage in interactive class discussions and activities.

View detailed information in the Handbook

Negligence is one of the most heavily litigated causes of action in common law jurisdictions. It is of enormous practical importance in a very wide range of fact situations. It is also a dynamic area of law: the relevant principles are constantly being applied to new fact situations, and the courts are regularly forced to grapple with difficult questions about the scope of negligence liability. This subject examines key issues and controversies in the law of negligence in the light of theoretical and comparative perspectives. The lecturers have both published widely on private law topics, including a range of issues in the law of negligence.

Indicative list of principal topics:

• An overview of the law of negligence, including theoretical and historical perspectives and the place of negligence in tort law and private law
• The duty of care requirement in general terms, including the distinction between duty in law and duty in fact, the approach to the duty question in novel situations and the role of public policy in duty decisions
• Liability for psychiatric injury
• Liability for pure economic loss
• Liability for omissions
• Liability of public authorities
• The standard of care and its application, with particular reference to professional negligence cases
• The requirement of damage
• Factual causation, including recovery for loss of a chance
• Scope of liability (legal causation and remoteness)
• Defences (both common law and statutory).

View detailed information in the Handbook

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

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

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

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

View detailed information in the Handbook

This subject examines the law applicable to planning and development projects within Victoria. A detailed analysis of the Planning and Environment Act 1987 (Vic) and its application will be supplemented by an examination of the various political, environmental, social and economic aspects that bear upon decision-making under the Victorian planning system. The subject will also address the interaction of the Victorian planning system with a number of other statutory processes relevant to the development of land within Victoria, including those contained within the Environment Protection Act 1970 (Vic) and the Subdivision Act 1988 (Vic).

Indicative list of principal topics:

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

View detailed information in the Handbook

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

Indicative list of principal topics:

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

View detailed information in the Handbook

Paid work is central to the lives of most adults – it provides an income and is constitutive of identities. For society at large, the organisation of paid work relationships is crucial because of the need to produce goods and services and to protect those engaged in production. Regulation of these work relationships by law is, therefore, important.

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

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

Indicative list of principal topics:

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

View detailed information in the Handbook

This subject is an introduction to the foundational principles and rules of the public international legal order. It is designed to provide students with an understanding of the key concepts of international law, its history and contemporary relevance, sources of international law and the role of some key international institutions, such as the United Nations (UN). The subject is grounded in both theory and practice in order to consider how international law works in shaping and dealing with a range of global issues, including the creation, recognition and sovereignty of states, self-determination of peoples and the use of force in international relations.

Using contemporary examples and case studies which address recent and current developments, students will critically evaluate the position and relevance of international law in international politics and society.

The teaching integrates both content and skills in advanced legal research and writing. We will purposefully introduce students to the practices and protocols of advanced study in international law, as well as to the specialised knowledge and skills required of studying at postgraduate level in the Melbourne Law Masters.

Indicative list of principal topics:

• The nature, purpose and language of international law;
• Sources of international law;
• International legal personality, statehood and sovereignty;
• Jurisdiction of states and jurisdictional immunities;
• The responsibility of states for violations of international law;
• Peaceful settlement of disputes and the functions of the International Court of Justice; and
• Regulation of the use of force in international relations (jus ad bellum).

Important information about this Subject

This subject is a pre-requisite for many other international law subjects in the Melbourne Law Masters. We recommend full-time students enrol in this subject when they first start their program of study. For part-time students, International Law (LAWS70173) is the alternative five-day intensive offering.

All students enrolled in the following internationally focussed courses are strongly recommended to take either LAWS90295 Principles of International Law or LAWS70173 International Law (if you don't already have prior professional or educational background in public international law):

• Master of Environmental Law
• Master of Human Rights Law;
• Master of Law and Development;
• Master of Public and International Law;
• Graduate Diploma in Environmental Law
• Graduate Diploma in Human Rights Law
• Graduate Diploma in Environmental Law
• Graduate Diploma in International Law.

More information on course planning in the Melbourne Law Masters.

View detailed information in the Handbook

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

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

Indicative list of principal topics:

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

View detailed information in the Handbook

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

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

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

Indicative list of principal topics:

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

View detailed information in the Handbook

In the first half of the 20th century most civil actions were for causes of action not much affected by statute: trespass, negligence, libel and slander, breach of contract and the various forms of equitable suit. Most criminal prosecutions were for offences created by statute but whose elements were treated as identified largely by judge-made law. There were great codifying acts; intellectual property acts, facultative acts, and regulatory statutes, but judge-made law was of central and dominating importance. The second half of the 20th century saw many changes. Statute became the central and dominating form of regulation of rights and obligations. The proper construction and application of statutes always has been, but now more than ever is, an essential legal skill. This subject seeks to develop and refine those skills by seeking to have students consider basic questions about legal thought and legal reasoning and then apply those lessons to the tasks of construction and application.

Indicative list of principal topics:

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

View detailed information in the Handbook

Work Health and Safety Law has grown in scope over the past decade, particularly since 2010 when most Australian governments implemented nationally-uniform laws about work health and safety. Victoria has, however, continued, with a similar but different model, and has a particularly active regulator.

This subject examines in detail the content of Victorian law, as well as the national laws, considering the operation of work health and safety law in its historical and industrial setting, as well as the likely practical operation of the regulatory regimes. The subject examines the application of safety laws to both physical risks and psychosocial risks, such as bullying and sexual harassment.

The lecturer is a practitioner with over 20 years’ experience in work health and safety, and guest lecturers from employee representative bodies and safety regulators will also present.

Indicative list of principal topics:

• The problem of work-related injury and disease
• The history of the legal regulation of health and safety at work
• The duties owed by employers and other parties under Victorian and nationally-uniform workplace health and safety laws
• Standard-setting under the Australian work health and safety statutes
• Worker representation and participation under the Australian work health and safety legislation
• State enforcement of the work health and safety legislation
• The application of work health and safety legislation to psychological health, bullying and sexual harassment
• How health and safety law has adapted to new ways of working and new challenges, such as remote and hybrid work, and COVID-19

View detailed information in the Handbook

This is a foundational subject in the Melbourne Law Masters (MLM) which is compulsory for graduates of disciplines other than law and for law graduates from countries with a non-common law system. It provides students with an opportunity to acquire the foundational legal skills necessary for studying and working in a common law system, such as that in Australia.

The common law forms one of the two principal systems of Western law that, through colonisation, have spread throughout the world. Common law systems have a distinctive approach to understanding the sources of law, the role of law-making institutions, and processes for resolving disputes. These characteristics of the common law system have had a profound effect on the development not only of the societies in the countries in which it applied, but also on international law and practice.

The aim of this subject is to acquire basic foundational legal skills that will assist you with other subjects in the MLM program. The subject teaches students how to read, use and interpret reported cases and legislation. The subject explains the sources of law, what influences them, and how they influence the development of the common law. These aims are given in context of some contemporary debates on common law reasoning by assessing the role of the High Court of Australia. The subject focuses on developing skills in analysis and legal writing, the tools of the common lawyer.

Indicative list of principal topics:

• How to read and analyse a case
• The concept and use of precedent
• Evolution of a common law principle
• Common law issues: judicial activism, separation of powers
• The role of the High Court and an overview of the Constitution
• The relationship between the Constitution, case law and statute law
• Influences of other sources of law on the common law
• How to read and analyse statutes
• Approaches to statutory interpretation
• Legal writing skills and expectations in the MLM program.

Important information about this Subject

This subject is an important foundational skills-based subject for many common-law focussed subjects in the Melbourne Law Masters. We recommend Masters students needing an introduction to the common law enrol in this subject when they first start their program of study. For most graduate diploma students, Australian Legal Process and Legal Institutions (ALPLI) is the alternative intensive offering.

All students enrolled in the following common-law focussed Masters courses are strongly recommended to take LAWS70217 Fundamentals of the Common Law (if you don't already have prior professional or educational background in the common law):

• Master of Banking and Finance
• Master of Commercial Law
• Master of Construction Law
• Master of Employment and Labour Relations Law
• Master of Energy and Resources Law
• Master of Health and Medical Law
• Master of Intellectual Property Law
• Master of Private Law
• Master of Laws (if you wish to focus on one of these common-law areas above)

More information on course planning in the Melbourne Law Masters.

View detailed information in the Handbook