Melbourne Law School - Research Publications

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    Lawyers, Confidentiality and Whistleblowing: Lessons from the McCabe Tobacco Litigation
    Parker, C ; Le Mire, S ; Mackay, A (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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    Who has a beef with reducing red and processed meat consumption? A media framing analysis
    Sievert, K ; Lawrence, M ; Parker, C ; Russell, CA ; Baker, P (CAMBRIDGE UNIV PRESS, 2022-03-01)
    OBJECTIVE: Diets high in red and processed meat (RPM) contribute substantially to environmental degradation, greenhouse gas emissions and the global burden of chronic disease. High-profile reports have called for significant global RPM reduction, especially in high-income settings. Despite this, policy attention and political priority for the issue are low. DESIGN: The study used a theoretically guided framing analysis to identify frames used by various interest groups in relation to reducing RPM in online news media articles published in the months around the release of four high-profile reports by authoritative organisations that included a focus on the impacts of high RPM production and/or consumption. SETTING: Four major RPM producing and consuming countries - USA, United Kingdom, Australia and New Zealand. PARTICIPANTS: None. RESULTS: Hundred and fifty news media articles were included. Articles reported the views of academics, policymakers, industry representatives and the article authors themselves. RPM reduction was remarkably polarising. Industry frequently framed RPM reduction as part of a 'Vegan Agenda' or as advocated by an elite minority. Reducing RPM was also depicted as an infringement on personal choice and traditional values. Many interest groups attempted to discredit the reports by citing a lack of consensus on the evidence, or that only certain forms of farming and processing were harmful. Academics and nutrition experts were more likely to be cited in articles that were aligned with the findings of the reports. CONCLUSIONS: The polarisation of RPM reduction has led to a binary conflict between pro- and anti-meat reduction actors. This division may diminish the extent to which political leaders will prioritise this in policy agendas. Using nuanced and context-dependent messaging could ensure the narratives around meat are less conflicting and more effective in addressing health and environmental harms associated with RPM.
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    What's really at 'steak'? Understanding the global politics of red and processed meat reduction: A framing analysis of stakeholder interviews
    Sievert, K ; Lawrence, M ; Parker, C ; Baker, P (ELSEVIER SCI LTD, 2022-08-22)
    Multiple reports from international organisations and expert groups call for reductions in production and consumption of red and processed meat (RPM) to attenuate associated health and environmental harms. Policymakers have given limited attention to the issue and public discourse on the topic is contentious. The framing of RPM as a policy issue by influential actors may be contributing to inertia and confusion. We investigate the political challenge of RPM reduction by analyzing how relevant actors interpret and portray the issue. Thirty-two participants from academia, civil society, intergovernmental organisations, and industry were interviewed. We find that food systems stakeholders do see value in continued RPM production and consumption in the food system, but that the current status-quo is untenable. RPM reduction was perceived as a polarising concept. Participants cited a lack of nuance in public discourse, with framings on harms and benefits of RPM being over-simplified and lacking context. Some participants noted that intensive RPM production and high consumption levels reflected corporatized/globalised supply chains, and power relations were the most critical factor to address the harms of RPM. Participants also viewed the preference for technology-driven responses (i.e., novel proteins) as reinforcing corporate power in the food system. This study shows that despite polarised public discourse, more convergence on the issue across food systems stakeholders exists. Furthermore, powerful actors such as the meat and 'novel protein' industries are perceived to be a driving influence in maintaining the market-driven status-quo and are a likely obstacle in achieving healthy and sustainable consumption of RPM.
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    Integrating nutrition and obesity prevention considerations into institutional investment decisions regarding food companies: Australian investment sector perspectives
    Robinson, E ; Parker, C ; Carey, R ; Foerster, A ; Blake, MR ; Sacks, G (BMC, 2022-11-08)
    BACKGROUND: There is growing recognition that current food systems are both unhealthy and unsustainable, and are increasingly shifting toward the supply and marketing of unhealthy, ultra-processed foods and beverages. Large food companies hold substantial power within food systems and present a significant barrier to progress on addressing issues related to nutrition and obesity prevention. Institutional investors (such as pension funds) play a key role in influencing corporate governance and practices, and are increasingly incorporating environmental, social and governance (ESG) considerations within investment decisions. By considering nutrition and obesity prevention, institutional investors present a potential avenue for driving increased food industry accountability for their population health impact. This study investigated views of stakeholders in the Australian investment sector on the incorporation of nutrition and obesity prevention considerations within institutional investment decision-making regarding food companies. METHODS: Fifteen in-depth, semi-structured interviews were conducted in 2020-21. Participants were predominantly Australian-based, and included representatives from asset management companies, superannuation funds, ESG advisory/consultancy firms, ESG research providers, and relevant advocacy groups. Interviews examined challenges and opportunities to the integration of nutrition and obesity prevention considerations within institutional investment decision-making. Interviews were analysed using deductive thematic analysis, informed by a theoretical change model. RESULTS: Several participants reported that their institution factored nutrition and obesity prevention considerations into their investment decisions; however, attention to nutrition-related issues was limited, generally perceived as 'niche', and not yet institutionalised. Key challenges and opportunities were identified at the employee, investment organisation, investment sector, government and non-government levels. These challenges and opportunities centred around experience and knowledge, quality and availability of ESG data and benchmarks, importance of investor coalitions, and demonstration of financial risks related to nutrition and obesity. CONCLUSION: There are a range of steps that could be taken to help ensure more systematic and effective consideration of issues related to nutrition and obesity prevention within institutional investment decision-making in Australia, including: (1) improved nutrition-related reporting metrics and benchmarking criteria for food companies; (2) better articulation of the financial risks that unhealthy diets and obesity pose to investors; (3) enhanced investor advocacy on unhealthy diets and obesity through investor coalitions and; (4) detailed guidance for investors on how to address unhealthy diets and obesity. Better engagement between the Australian public health community, institutional investors and government regulators is critical to drive changed investor practice in this area.
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    Are Banks Responsible for Animal Welfare and Climate Disruption? A Critical Review of Australian Banks' Due Diligence Policies for Agribusiness Lending
    Parker, C ; Sheedy-Reinhard, L (Cambridge University Press, 2022-11)
    Abstract This article argues that banks should adopt animal welfare policies in the light of the growing acceptance of the need for ‘responsible banking’, which incorporates environmental, social, and governance analysis into credit risk and due diligence processes. The responsibility of banks for animal welfare is underscored by the drive towards greater investment in animal agribusiness, and the vicious cycle through which animal agribusiness can both contribute to, and be impacted by, climate disruption. The article evaluates, through a desktop review, how leading Australian retail banks and agribusiness lenders are addressing animal welfare and climate disruption in animal agribusiness lending. We find that although most banks have made a commitment to animal welfare and climate policies, these often amount to little more than greenwashing. We call for an ecosystem of industry, regulatory, and civil society action to address this danger.
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    Is Australia's Foreign Investment Screening Policy Consistent with International Investment Law?
    Voon, T ; Merriman, D (Melbourne Journal of International Law, 2022)
    Significant changes to Australia’s foreign investment screening policy came into effect in 2021, modifying the Foreign Acquisitions and Takeovers Act 1975 (Cth). These changes establish a framework for national security reviews of proposed foreign investments in Australia, including the potential for review of investments that have already been lawfully admitted into the country. These developments increase the risk of conflict with international investment law, as reflected in Australia’s obligations under more than thirty international investment agreements, in the form of bilateral investment treaties and preferential trade agreements with investment chapters or associated investment agreements. Traditionally, these agreements shielded Australia’s foreign investment policy by restricting themselves to investments that had already been established in Australia. In more modern agreements, a range of reforms add explicit and implicit protections to Australia’s foreign investment policy. However, the co-existence of traditional and modern approaches and the inconsistency with which reforms have been adopted across different treaties complicate the assessment of Australia’s compliance with international investment law in its foreign investment screening policy. Potential remains for claims to be brought against Australia in this regard by home states or investors themselves.
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    "Equity’s Darling" and the Burwood Ejectment Case: A Turning Point in Colonial Australian Law
    Barnett, K ; Barnett, L (Thomson Reuters (Professional), 2022-12-06)
    The Burwood Ejectment case arose when the ad hoc executor and trustee of a will in early colonial Sydney sold off Burwood Estate to meet the testator's debts, after receiving a court order empowering him to do so. Twenty years later, the testator's de facto wife and children successfully voided the sale. The purchaser was ejected, notwithstanding the fact that he was a bona fide purchaser for value without notice. The decision undermined confidence in security of transactions in the Colony and created a political furore and ongoing disputes. It is suggested that the case was a contributing factor to the creation of the Judge in Equity in New South Wales and illustrates broader issues with security of title and the political and legal organisation of early colonial Australia.
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    The Challenges of Political Corruption in Australia, the Proposed Commonwealth Integrity Commission Bill (2020) and the Application of the APUNCAC
    dela Rama, MJ ; Lester, ME ; Staples, W (MDPI, 2022-02-01)
    Political corruption affects each nation-state differently, but the outcomes are nominally the same: a deficit of public trust, weakened government institutions and undermined political systems. This article analyzes issues of political corruption in Australia by framing them within a national integrity ecosystem (NIE) and addressing them against the proposed Commonwealth Integrity Commission (CIC) 2020 bill. It also discusses prevalent ‘grey’ areas of Australian politically-corrupt behavior where they interact with the private sector: the revolving door, political donations, and lobbying; and the state of Australia’s implementation of the OECD Anti-Bribery Convention. This article argues for their inclusion within the mandated scope of the proposed CIC. There is a need for strong legislation, both domestic and international, to fight corruption. This article then discusses the application of the provisions of the draft Anticorruption Protocol to the UN Convention Against Corruption (APUNCAC) that may apply with respect to these ‘grey’ issues, and how an International Anti-Corruption Court may provide another institutional model for Australia to follow. Finally, this article links these proposals to the 2021 UN General Assembly Special Session (UNGASS) on Corruption and the 9th Conference of States Parties on the UNCAC (COSP9). These events illustrate multilateral momentum and progress on anti-corruption. As a country that has historically supported the UN multilateral framework and its institutions, this article recommends a proactive approach for Australia so that the passing of a strong domestic anticorruption initiative will contribute to the adoption, and eventual ratification, of the APUNCAC.
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    Contract Damages for Defective Construction Work: An Unsolvable Puzzle?
    Bell, M (Thomson Reuters (Professional), 2022-11-11)
    This article considers how the common law decides upon the appropriate measure of damages where there is a breach of contract resulting in defective construction work. It focuses upon recent case law from South Australia offering a “menu” of factors which can be taken into account in deciding whether damages based upon the cost of rectification of the work ought to be awarded. This “menu” is by no means unproblematic; it sits in tension with High Court authority which leaves unresolved the more nuanced aspects of how parties’ performance interests are to be upheld by way of damages awards. Hence, the “puzzle” aspect of the article’s title. The article concludes that the “menu” is worthy of consideration outside of South Australia, but should include an overriding factor that rectification will be deemed reasonable to the extent that the defect threatens the health and safety of occupants of the building.
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    Consensus and Diversity in the World Trade Organization: A Queer Perspective
    O'Hara, C (Cambridge University Press (CUP), 2022)
    When the World Trade Organization (WTO) was established in 1995, it was seen as representative of a new era in international law, which claimed to be more functional and cooperative than the Cold War years. Fast forward to 2022, most commentators proclaim that the WTO is in “crisis.” For over two decades, its membership has struggled to reach decisions and, in 2019, the WTO was “dejudicialized” by the United States blocking consensus on appointments to the Appellate Body. In seeking to understand what went wrong, some commentators have focused on the operation of the WTO's consensus procedure and, in particular, the way it can afford states a veto power. In this essay, I take a different approach by considering how the discursive effects of consensus decision making have played into some of the problems facing the WTO today. Inspired by Gibson-Graham's work on “queering the economy,” I do so by unmooring queer theory from its base of gender and sexuality and applying queer insights to a discourse analysis of statements made in relation to the Uruguay Round of multilateral trade negotiations, which lasted from 1986 until 1993 and culminated in the agreement to establish the WTO. I show how the use of consensus decision making served to cultivate an intolerance of economic difference by giving rise to discourses of worldwide sameness and agreement. Finally, I consider what a queerer approach to trade-related decision making might look like.