Melbourne Law School - Research Publications

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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)
    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)
    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)
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    Commercial Advertising of Alcohol: Using Law to Challenge Public Health Regulation
    O'Brien, P ; Room, R ; Anderson-Luxford, D (CAMBRIDGE UNIV PRESS, 2022)
    In most countries, the alcohol industry enjoys considerable freedom to market its products. Where government regulation is proposed or enacted, the alcohol industry has often deployed legal arguments and used legal forums to challenge regulation. Governments considering marketing regulation must be cognizant of relevant legal constraints and be prepared to defend their policies against industry legal challenges.
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    Medicinal cannabis and driving: the intersection of health and road safety policy
    Perkins, D ; Brophy, H ; McGregor, I ; O'Brien, P ; Quilter, J ; McNamara, L ; Sarris, J ; Stevenson, M ; Glesson, P ; Sinclair, J ; Dietze, P (Elsevier, 2021-11-01)
    Background Recent shifting attitudes towards the medical use of cannabis has seen legal access pathways established in many jurisdictions in North America, Europe and Australasia. However, the positioning of cannabis as a legitimate medical product produces some tensions with other regulatory frameworks. A notable example of this is the so-called ‘zero tolerance’ drug driving legal frameworks, which criminalise the presence of THC (tetrahydrocannabinol) in a driver's bodily fluids irrespective of impairment. Here we undertake an analysis of this policy issue based on a case study of the introduction of medicinal cannabis in Australia. Methods We examine the regulatory approaches used for managing road safety risks associated with potentially impairing prescription medicines and illicit drugs in Australian jurisdictions, as well as providing an overview of evidence relating to cannabis and road safety risk, unintended impacts of the ‘zero-tolerance’ approach on patients, and the regulation of medicinal cannabis and driving in comparable jurisdictions. Results Road safety risks associated with medicinal cannabis appear similar or lower than numerous other potentially impairing prescription medications. The application of presence-based offences to medicinal cannabis patients appears to derive from the historical status of cannabis as a prohibited drug with no legitimate medical application. This approach is resulting in patient harms including criminal sanctions when not impaired and using the drug as directed by their doctor, or the forfeiting of car use and related mobility. Others who need to drive are excluded from accessing a needed medication and associated therapeutic benefit. ‘Medical exemptions’ for medicinal cannabis in comparable jurisdictions and other drugs included in presence offences in Australia (e.g. methadone) demonstrate a feasible alternative approach. Conclusion We conclude that in medical-only access models there is little evidence to justify the differential treatment of medicinal cannabis patients, compared with those taking other prescription medications with potentially impairing effects.
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    Industry influence over global alcohol policies via the World Trade Organization: a qualitative analysis of discussions on alcohol health warning labelling, 2010-19
    Barlow, P ; Gleeson, D ; O'Brien, P ; Labonte, R (ELSEVIER SCI LTD, 2022-03)
    BACKGROUND: Accelerating progress to implement effective alcohol policies is necessary to achieve multiple targets within the WHO global strategy to reduce the harmful use of alcohol and the Sustainable Development Goals. However, the alcohol industry's role in shaping alcohol policy through international avenues, such as trade fora, is poorly understood. We investigate whether the World Trade Organization (WTO) is a forum for alcohol industry influence over alcohol policy. METHODS: In this qualitative analysis, we studied discussions on alcohol health warning labelling policies that occurred at the WTO's Technical Barriers to Trade (TBT) Committee meetings. Using the WTO Documents Online archive, we searched the written minutes of all TBT Committee meetings available from Jan 1, 1995, to Dec 31, 2019, to identify minutes and referenced documents pertaining to discussions on health warning labelling policies. We specifically sought WTO member statements on health warning labelling policies. We identified instances in which WTO member representatives indicated that their statements represented industry. We further developed and applied a taxonomy of industry rhetoric to identify whether WTO member statements advanced arguments made by industry in domestic forums. FINDINGS: Among 83 documents, comprising TBT Committee minutes, notifications to the WTO of the policy proposal, and written comments by WTO members, WTO members made 212 statements (between March 24, 2010, and Nov 15, 2019) on ten alcohol labelling policies proposed by Thailand, Kenya, the Dominican Republic, Israel, Turkey, Mexico, India, South Africa, Ireland, and South Korea. WTO members stated that their claims represented industry in seven (3·3%) of 212 statements, and 117 (55·2%) statements featured industry arguments. Member statements featured many arguments used by industry in domestic policy forums to stall alcohol policy. Arguments focused on descaling and reframing the nature and causes of alcohol-related problems, promoting alternative policies such as information campaigns, promoting industry partnerships, questioning the evidence, and emphasising manufacturing and wider economic costs and harms. INTERPRETATION: WTO discussions at TBT Committee meetings on alcohol health warnings advanced arguments used by the alcohol industry in domestic settings to prevent potentially effective alcohol policies. WTO members appeared to be influenced by alcohol industry interests, although only a minority of challenges explicitly referenced industry demands. Increased transparency about vested interests might be needed to overcome industry influence. FUNDING: None.
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    Industry Submissions on Alcohol in the Context of Australia's Trade and Investment Agreements: A Content and Thematic Analysis of Publicly Available Documents
    Miller, M ; Wilkinson, C ; Room, R ; O'Brien, P ; Townsend, B ; Schram, A ; Gleeson, D (Wiley, 2021)
    Alcohol use is a leading risk factor for death and disability, responsible for 3 million deaths in 2016. The alcohol industry is a powerful player in shaping trade and investment rules in ways that can constrain the ability of governments to regulate alcoholic beverages to reduce harm. This paper analyses publicly available submissions about alcohol in the context of Australia’s free trade agreements to determine the key themes put forward by industry.
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    Alcohol Labelling Rules in Free Trade Agreements: Advancing the Industry's Interests at the Expense of the Public's Health
    Gleeson, D ; O'Brien, P (Wiley, 2021)
    The Trans-Pacific Partnership Agreement (TPP) included novel rules for wine and spirits requiring parties to allow wine and spirits importers to display information required by the importing country on a supplementary label rather than on the standard label. Since the TPP negotiations concluded, alcohol-specific supplementary labelling rules have begun to appear in other trade agreements. The aim of this paper was to map the new instruments containing these rules and examine developments in the rules with implications for health information on alcohol containers.
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    Reducing the Power of the Alcohol Industry in Trade and Investment Agreement Negotiations Through Improved Global Governance of Alcohol Comment on "What Generates Attention to Health in Trade Policy-Making? Lessons From Success in Tobacco Control and Access to Medicines: A Qualitative Study of Australia and the (Comprehensive and Progressive) Trans-Pacific Partnership"
    O'Brien, P (KERMAN UNIV MEDICAL SCIENCES, 2022-04)
    The power of the alcohol industry pervades the global governance of alcohol. The influence of the industry is seen in trade and investment treaty negotiations, operating through direct and indirect means. Curbing the influence of the industry is vital to improving the treatment of health issues generally and in trade and investment policy particularly. The World Health Organization (WHO) has an opportunity to start to rein in the power of the industry with its current work on drafting an 'action plan' for 2022-2030 to implement the Global Strategy to Reduce the Harmful Use of Alcohol. The WHO working paper, however, proposes inadequate controls on alcohol industry influence. The WHO proposes 'dialogue' with the industry and allows the industry to take a role with government in public health labelling of alcohol. The public's health will suffer if the WHO does not take a firmer stand against the industry in the 'action plan.'
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    Alcohol Marketing and Social Media: A Challenge for Public Health Control
    Room, R ; O'Brien, P (Wiley, 2021)
    In public health terms, alcohol is no ordinary commodity. It accounts not only for a substantial portion of the world’s burden of disease but also for much social harm. Because of this, a majority of countries have some kind of restrictions beyond general rules for foodstuffs on alcohol’s availability and promotion. On the international level, however, restrictions in the interests of public health are minimal. On the contrary, indeed, international and regional trade agreements are increasingly restricting what national governments can do to control the alcohol market.