Melbourne Law School - Research Publications
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ItemMeta-regulation: legal accountability for corporate social responsibility(Routledge, 2017-01-01)The chapter argues that legal accountability for corporate social responsibility (CSR) must be aimed at making business enterprises put themselves through a CSR process aimed at CSR outcomes. It sets out what meta-regulating law must do and be in order to hold companies accountable for their responsibility. The chapter briefly explains how this notion of meta-regulating law relates to the plurality of legal, non-legal and quasi-legal ‘governance’ mechanisms at work in a globalising, post-regulatory’ world. It also sets out the critique that law which attempts to meta-regulate corporate responsibility will focus on internal governance processes in a way that allows business to avoid the conflict between self-interest and social values, and therefore to avoid accountability. Meta-regulatory law is a response to the recognition that law itself is regulated by non-legal regulation, and should therefore seek to adapt itself to plural forms of regulation.
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ItemNo Preview AvailableConsumer Choice as a Pathway to Food Diversity: A Case Study of Açaí Berry Product Labelling(Springer International Publishing, 2018)Forest lands and the rich social and ecological diversity contained within are being lost as demand for agriculture land expands globally. During this process traditional cultivation practices are marginalised resulting in a loss of dietary diversity. As Vira et al. observe 'Despite the huge potential of forest and tree foods to contribute to diets, knowledge on many forest foods, especially wild foods, is rapidly being lost because of social change and modernisation' . Forest loss coupled with the associated declines in dietary diversity and traditional knowledge are a threat to the human right to food. This right requires diverse food production systems that are sustainable, support livelihoods (especially those who are most marginalised) and meet nutritional needs. This chapter explores the exporting and labelling of a traditional food source the "acai berry" and examines whether the production and sale of acai has the potential to improve food diversity.
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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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ItemNo Preview AvailableCompliance: 14 Questions(ANU Press, 2017)
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ItemMoving towards Ecological Regulation: The Role of Criminalisation(Routledge - Taylor & Francis, 2017)Contemporary society faces multiple and interacting environmental challenges that require transformational change in the conduct of business. We take one of these challenges, the need to combat anthropogenic climate change, to interrogate what is required in transforming business regulation towards what we term ‘ecological regulation’. This transition requires us to grapple with how business regulation is currently framed and how change will effect such regulation. Regulation is largely premised both on the benefits of economic competition and for the control of particular harms to take place in an discrete case-by-case manner. Current moral and legal strategies used by activists in attempting to engender a dramatic reduction in greenhouse gas emissions by business interact with current forms of regulation in distinct ways. The former involves activists staking a moral case for criminalisation of ecological damage through naming and shaming strategies. This may shift the moral boundaries of acceptable business behaviour. The latter is achieved by ‘bracing’ greenhouse gas reduction with existing business regulation that can bring some legal accountability to bear. We show how these strategies begin to reframe regulatory regimes as well as what ecological regulation might look like if full legal authority in enshrining a respect for ecological limits were added the contemporary framing of business regulation.
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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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ItemFrom responsive regulation to ecological compliance: meta-regulation and the existential challenge of corporate compliance(Cambridge University Press, 2021)This chapter revisits the significance of responsive regulation for theories of compliance. It shows how responsive regulation’s theory of compliance recognises both multiple motivations for compliance and plural actors who help negotiate and construct compliance. It argues that responsive regulation theory implies responsive compliance and that this can help build possibilities for deliberative democratic responsibility and accountability of both businesses and regulators. This is the idea that Parker previously labelled the meta-regulation of the “open corporation”. This chapter concludes that since business activity, and indeed human development, now face the existential challenge of socio ecological disruption and collapse in which profit oriented commercial activity is a significant driver, theories of compliance need to expand to concern themselves with how whole markets and industries can be made responsive to both social and ecological embeddedness. Regulatory compliance scholars need to pay attention to how networks of interacting business, government and civil society and social movement actors can influence business activity profoundly enough to shift the very nature of “business as usual”. The chapter therefore proposes the need for “ecological compliance” as a development of Ayres and Braithwaite’s analysis of compliance.
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ItemInvesting for Nurtrition and Obesity Prevention: Current Practice in Australia( 2021-08-19)Summary • Unhealthy diets, obesity and related non-communicable diseases are the leading cause of death and disability worldwide and represent a major public health challenge. • Addressing unhealthy diets and obesity will require comprehensive societal change, including comprehensive action from governments and food companies to improve the healthiness of food systems. • Investors can contribute to change through their investment decisions. They also stand to benefit from the positive societal and economic impacts associated with obesity prevention efforts. • In 2019/20, we reviewed a large sample of Australian institutional investors, asset management companies and superannuation funds, to investigate how these investors were incorporating nutrition and obesity-related considerations in their decision-making. • We found that 18 out of 35 investors included nutrition and obesity-related considerations in their investment decision-making, albeit in limited ways. • The most common way in which nutrition and obesity were considered was through so-called ‘ESG (Environmental, Social, and Governance) integration’ strategies. Most often, this was through considerations related to ‘health’ in the general sense, e.g., broad health and wellbeing considerations in selecting investment portfolios. Some investors explicitly considered the healthiness of a food company’s products in determining whether to invest or not. • Examples of ways in which nutrition and obesity-related considerations were being applied included investors actively engaging with food companies to encourage them to improve their nutrition-related policies and practices, and screening food companies based on risks associated with the healthiness of their product portfolios. • The findings of this research point to the need for: – Consistent nutrition-related sustainability reporting by food companies, guided by clear reporting frameworks; – The availability of comprehensive nutrition-related ESG data for investors, accompanied by agreed nutrition-related performance benchmarks; – More guidance on best practices for investors and the food industry. • Further research will help to identify how the investment community can best support efforts to address obesity and improve nutrition in Australia.