Melbourne Law School - Research Publications
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ItemNo Preview AvailableLawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation(Melbourne University, Law Review Association, 2017)In 2006, Christopher Dale leaked information about Clayton Utz’s internal investigation into the events surrounding the destruction of documents that would have been relevant and damaging to their client, British American Tobacco, in the 2002 McCabe litigation. This article uses this case study to examine whether lawyers can and should act as whistleblowers against colleagues and clients who abuse the administration of justice. We argue that although lawyers must have strong obligations of confidentiality to clients and others, their role as gatekeepers of justice also demands that they be allowed to blow the whistle when they have information about clients or other lawyers using legal services to subvert the administration of justice, and be protected when they do so. The article evaluates the circumstances in which such whistleblowing is appropriate and makes suggestions about how the law should be reformed by reference to three touchstones: the nature of the relationship between the lawyer and the wrongdoer; the nature of the wrongdoing itself; and, the process used to disclose the wrongdoing.
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ItemAn Ecological Approach to Regulatory Studies?(Wiley-Blackwell Publishing, 2018)Regulatory studies has been mainly occupied with addressing the social and economic crises of contemporary capitalism through instrumentally and responsively rational approaches. This article asks how regulatory scholarship can better respond to the ecological crisis now facing our world and our governance systems alongside social and economic crises. There are both possibilities and problems with instrumentally rational regulatory approaches that see human ecological impact as an externality or market failure and socio-legal approaches to regulatory studies that emphasize the need to attend to the social and political aspects of regulation using a responsively rational approach. A third big shift towards an ecologically rational approach to regulatory studies is needed to comprehend our embeddedness within ecological systems. An ecologically rational approach also calls for an understanding of how multiple, diverse ways of sustainable being can intersect with and challenge current regulatory regimes dominated by an instrumentally rational approach.
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ItemBook Review: Impact: How Law Affects Behavior(Wiley, 2017)
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ItemConsumer Power to Change the Food System? A Critical Reading of Food Labels as Governance Spaces: The Case of Agai Berry Superfoods(University of Arkansas, School of Law, 2019)This article argues that the marketing claims on food labels are a governance space worthy of critical examination. We use a case study of superfood agai berry products to illustrate how marketing claims on food labels encapsulate dominant neoliberal constructions of global food systems. These marketing claims implicitly promise that by making careful choices consumers can resist and redress the ravages of unbridled global capitalism.
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ItemSUSTAINABLE HEALTHY FOOD CHOICES: THE PROMISE OF 'HOLISTIC' DIETARY GUIDELINES AS A NATIONAL AND INTERNATIONAL POLICY SPRINGBOARD(QUEENSLAND UNIV TECHNOLOGY, 2018)A healthy diet is generally a sustainable diet. This point is illustrated in the large body of work exploring the interconnections between public health nutrition and environmental issues associated with food choices. Unhealthy diets and their contribution to diet-related noncommunicable diseases (NCDs) are receiving growing attention from international and national policy-makers. Dietary guidelines that inform consumers about food choices and that shape policy actions to enable choices in line with the guidelines are foundational to both national and international responses to diet-related NCDs. The purpose of this paper is to argue for holistic dietary guidelines as part of national and international policy responses to diet-related NCDs. Holistic dietary guidelines simultaneously address health and environmental sustainability to address common causes and harness synergistic solutions. They are based on evidence, and free of conflicts of interest. Moreover, they act as a policy springboard for effective regulatory action to change the food environment and not just as an education tool. Holistic dietary guidelines raise potential concerns under international trade and investment law, for example, to the extent that such guidelines promote local products as a means of supporting both nutritional and environmental health. These issues will be examined in more depth in a second paper in this special issue that follows on from this one.
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ItemThe Food Label as Governance Space: Free-Range Eggs and the Fallacy of Consumer Choice(Boom Juridische Uitgevers, 2014)In a neoliberal age governments, NGOs, food producers and retailers all state that the food system can be governed via consumer choice aka voting with your fork. This makes the retail food label an important space for contests between different actors who each seek to govern the food system according to their own interests and priorities. The paper argues that this makes it crucial to ‘backwards map’ the regulatory governance networks behind the governance claims staked on food labels. The paper uses the example of the contested meaning of ‘free-range’ claims on animal products in Australia to propose and illustrate a methodology for this backwards mapping.
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ItemThe Happy Hen on Your Supermarket Shelf: What Choice Does Industrial Strength Free-Range Represent for Consumers?(Springer Verlag, 2013)This paper investigates what "free-range" eggs are available for sale in supermarkets in Australia, what "free-range" means on product labelling, and what alternative "free-range" offers to cage production. The paper concludes that most of the "free-range" eggs currently available in supermarkets do not address animal welfare, environmental sustainability, and public health concerns but, rather, seek to drive down consumer expectations of what these issues mean by balancing them against commercial interests. This suits both supermarkets and egg producers because it does not challenge dominant industrial-scale egg production and the profits associated with it. A serious approach to free-range would confront these arrangements, and this means it may be impossible to truthfully label many of the "free-range" eggs currently available in the dominant supermarkets as free-range.
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ItemVoting with Your Fork?: Industrial Free-Range Eggs and the Regulatory Construction of Consumer Choice(SAGE Publications, 2013)Labeling and information disclosure to support consumer choice are often proposed as attractive policy alternatives to onerous mandatory business regulation. This article argues that choices available to consumers are constructed and constrained by actors in the chains of production, distribution, and exchange who bring products to retail. It traces how “free-range” eggs come to market in Australia, finding that the “industrial free-range” label dominating the market is not substantially different from caged-egg production in the way that it addresses animal welfare, public health, and agro-ecological values. I show how the product choices available to consumers have been constructed not just by the regulation (or nonregulation) of marketing and labeling, but also by the regulatory paths taken and not taken all along the food chain.
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ItemOut of the Cage and into the Barn: Supermarket Power Food System Governance and the Regulation of Free Range Eggs(Griffith University Law School, 2014)The highly concentrated nature of food retailing in Australia gives supermarkets considerable control over the interface between consumers and producers. Legal and regulatory commentary debates what can and should be done about the market dimensions of supermarket power. This article shows that Australian supermarkets are amassing not only economic power but also political power in the food system. The article makes this argument by reference to two major supermarkets’ initiatives in the regulatory space around food labelling, specifically the contested meaning of free range eggs. The article examines how the supermarkets are using their market power to create private standards for suppliers of own brand products that set the meaning of ‘free range’ for consumers too. This entrenches supermarkets’ market share as well as their political power as food authorities.
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ItemFront-of-Pack Food Labeling and the Politics of Nutritional Nudges(Wiley, 2016)This paper examines the potential for new front-of-pack nutrition labelling initiatives to “nudge” consumers towards healthier food choices. The libertarian-paternalist approach to policy known as nudge initially developed by Thaler and Sunstein is discussed, with its emphasis on designing spaces (including the space of the food label) to shape the behaviour of individuals while not restricting consumer choice or imposing restrictions or penalties on producers. In the context of concerns over diet-related chronic diseases and obesity, new front-of-pack interpretive nutrition labels have been proposed or implemented in an attempt to shift consumer dietary choices, including the multiple traffic light labelling system (MTL) in the U.K. and the Health Star Rating (HSR) system in Australia. We identify some of the characteristics, the underlying nutritional philosophies and the limitations of these front-of-pack labelling schemes. We suggest that the potential of these schemes is compromised by the co-existence on the food label of many other forms of nutrition information and food marketing. Some alternative ways of labelling and communicating the nutritional quality of foods are also discussed.