Melbourne Law School - Research Publications

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    Regulating Libra
    Zetzsche, DA ; Buckley, RP ; Arner, DW (OXFORD UNIV PRESS, 2021-03-01)
    Libra is the first private cryptocurrency with the potential to change the landscape of global payment and monetary systems. Due to the scale and reach provided by its affiliation with Facebook, the question is not whether, but how, to regulate it. This article introduces the Libra project and analyses the potential responses open to regulators worldwide. We conclude that perhaps the greatest impact will come not from Libra itself, but rather from reactions to it, particularly by other BigTechs, incumbent financial institutions and governments around the world.
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    Criminal Liability for "Wage Theft": A Regulatory Panacea?
    Hardy, T ; Howe, J ; Kennedy, M (Monash University, 2021)
    In response to concerns over the growing problem of ‘wage theft’, the federal government, as well as various state governments, have committed to introducing criminal sanctions for underpayment contraventions. While policymakers and the public have largely assumed that criminal sanctions will address a perceived deterrence gap and promote employer compliance with basic employment standards, there has been far less scholarly appraisal of how this regulatory shift might shape enforcement decisions and affect compliance outcomes. Drawing on literature from criminology, as well as regulation and governance, this article evaluates a range of conceptual justifications put forward in support of criminalising certain forms of wage theft. It also considers key practical issues which may arise in a dual track system where both criminal and civil sanctions are available for the same or similar contraventions. This article concludes with some suggestions on how criminal offences might be framed in the federal system so as to optimise employer compliance and reduce regulatory tensions.
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    Australian Family Property Law Current Issues and Challenges
    Fehlberg, B ; Sarmas, L ; Choudhry, S ; Herring, J (CAMBRIDGE UNIV PRESS, 2019-01-01)
    There are several reasons why it seems important to focus on Australian family property law now. In May 2017, the Australian Federal Attorney General announced a major review of the family law system, to be undertaken by the Australian Law Reform Commission. The inquiry's widely cast terms of final report is due by 31 March 2019.
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    The perils and pitfalls of formal equality in australian family law reform
    Fehlberg, B ; Sarmas, L ; Morgan, J (SAGE Publications, 2018-01-01)
    In this paper, we identify the influence of formal equality—and more specifically, formal gender equality (that is, treating men and women the same)—in central areas of major Australian family law reform over the past 20 years. Given the influence of formal equality and our concerns regarding this trend, we consider whether equality-based arguments should be abandoned entirely, at least in the family law context, and explore alternative approaches that could reframe the debate.
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    Exploring separated fathers' understandings and experiences of 'home' and homemaking
    Campo, M ; Fehlberg, B ; Natalier, K ; Smyth, BM (ROUTLEDGE JOURNALS, TAYLOR & FRANCIS LTD, 2021-07-03)
    This paper considers fathers’ understandings and experiences of home after relationship separation–an issue that has received little research attention to date–through interviews with four separated fathers conducted as part of a larger qualitative study. Key themes to emerge were: the significance attached by participant fathers to home and homemaking through their focus on everyday interactions; the concern that their home might be viewed by children as secondary; and a sense of the vulnerability and transience of home arising from their children’s presence and absence. Viewed overall, the fathers in this study conveyed their determination to offer their children a loving, stable, and secure home life as a fundamental dimension of their commitment to post-separation fathering while also describing key challenges they experienced in doing so.
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    The meaning of home for children and parents after parental separation: Recent insights from a qualitative study
    Fehlberg, B ; Campo, M ; Smyth, B ; Natalier, K (LexisNexis Australia, 2021)
    In this article, we draw on our recent study on the meaning of home for children and young people in separated families to offer some insights of relevance to Australian post-separation parenting law and practice. We identify the centrality of relationships, safety, and economic resources in shaping home. Our project findings convey the importance of listening to what children and young people — and their parents — say about home and homemaking after parental separation as a way of shedding light on what is most needed to support their adjustment and encouraging greater child focus when parenting arrangements are made.
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    COVID-19: PUBLIC HEALTH EMERGENCY POWERS AND ACCOUNTABILITY MECHANISMS IN AUSTRALIA
    O'Brien, P ; Waters, E (THOMSON REUTERS AUSTRALIA LTD, 2021-01-01)
    During the COVID-19 pandemic in Australia, governments in all jurisdictions (except New South Wales) have declared states of emergency and exercised powers under their public health emergency legislation. Highly restrictive measures have been introduced pursuant to the exercise of such powers. Extraordinary government action demands strong accountability. This section piece reviews the public health emergency legislation in all Australian jurisdictions and finds that inadequate accountability mechanisms are embedded in the statutes. This section piece demonstrates that there is insufficient transparency around the decisions being made by the Executive under the public health emergency powers. The section piece also reveals that there are very few options built into the public health emergency legislation for review of executive action for its legality, meritoriousness and fairness.
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    Missing in Action: The Global Strategy to Reduce the Harmful Use of Alcohol and the WTO
    O'brien, P (CAMBRIDGE UNIV PRESS, 2021-06-01)
    This article addresses the question of how the World Health Organization (WHO) Global Strategy to Reduce the Harmful Use of Alcohol (Global Strategy) and its Framework Convention on Tobacco Control (FCTC) have been used in the context of discussions about alcohol and tobacco measures, respectively, in the World Trade Organization (WTO) Committee on Technical Barriers to Trade. The article finds considerable differences not only in the extent to which the FCTC is used compared to the Global Strategy , but also in the ways in which the two global health instruments have been used in the WTO context. The article proffers three key reasons for these differences: the legal status of the instrument; the content of the instrument in terms of whether it contains guidance as to the use of detailed, evidence-based measures; and the role and legitimacy that the instrument accords to the relevant industry interests. The article considers how the insights from the research can inform the developments in global governance of alcohol that are underway in WHO policy. It also positions its findings in terms of the wider international law debates about hard law versus soft law, and whether different types of international regulatory instruments and the legal status of these instruments impact their effectiveness in supporting domestic public health measures.
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    Public Health and the Global Governance of Alcohol
    O'brien, P (CAMBRIDGE UNIV PRESS, 2021-06-01)
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