Melbourne Law School - Research Publications
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ItemMANDATORY DATA BREACH NOTIFICATION LAWS AND AUSTRALIAN HEALTH DATA PRIVACY: FRAGMENTS AND FAULT LINES(Monash University, 2021)Data privacy breaches — unauthorised access to, disclosure, or loss of people’s personal information — are commonplace, particularly in the health sector. In Australia, provisions under the Privacy Act 1988 (Cth) and the My Health Records Act 2012 (Cth) require data breach notification to affected people and the regulator. However, this mandatory notification, as it pertains to health information, has two key problems: fragmentation, and lack of fitness for purpose. In this article, I analyse the goals of the Australian legislative developments and the extent to which these are met in relation to health data. I propose legal and procedural reforms to mend the fragments and fault lines so that breach notification can more effectively address healthcare data breaches in Australia.
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ItemInoculating Law Schools Against Bad Metrics(Elsevier BV, 2021-01-25)Law schools and legal scholars are not immune to the expanding use of quantitative metrics to assess the research of universities and of scholars working within universities. Metrics include grant and research income, the number of articles produced in journals on ranked lists, and citations (by scholars, and perhaps courts). The use of metrics also threatens to expand to measure other kinds of desired activity, with various metrics suggested to measure the impact of research beyond scholarly circles, and even more amorphous qualities such as leadership and mentoring. Many working legal scholars are (understandably) unaware of the full range of ways in which metrics are calculated, and how they are used in universities and in research policy. What is more, despite a large and growing research policy literature and perhaps an instinct that metrics are inherently flawed as a means to recognise research 'performance', few researchers are aware of the full scope of known and proven weaknesses and biases in research metrics. In this contribution to a forthcoming book, we describe the use of metrics in university and research and higher education policy (with a focus on Australia). We review the literature on the many flaws and biases inherent in metrics used, with a focus on legal scholarship. Most importantly, we also want to promote a conversation about what it might look like for academic researchers working in law faculties or on legal issues to assess research contributions that promote the shared values of the legal academy. Our focus is on two areas of research assessment: research impact and the bucket of concepts variously described as mentorship, supervision, and/or leadership. We reframe the questions that researchers and assessors should ask: not, “what impact has this research had”, but “what have you done about your discovery?”; not “what is your evidence of research leadership”, but, “what have you done to enable the research and careers of others?”. We also present concrete suggestions for how working legal scholars and faculties can shift the focus of research assessment towards the values of the legal academy. The chapter incorporates some of our thinking on developing meaningful legal research careers - something that will hopefully be of interest to any working legal scholar.
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ItemRegulating Libra(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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ItemCriminal Liability for "Wage Theft": A Regulatory Panacea?(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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ItemExploring separated fathers' understandings and experiences of 'home' and homemaking(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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ItemThe meaning of home for children and parents after parental separation: Recent insights from a qualitative study(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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ItemCOVID-19: PUBLIC HEALTH EMERGENCY POWERS AND ACCOUNTABILITY MECHANISMS IN AUSTRALIA(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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ItemNo Preview AvailableMissing in Action: The Global Strategy to Reduce the Harmful Use of Alcohol and the WTO(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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ItemNo Preview AvailablePublic Health and the Global Governance of Alcohol(CAMBRIDGE UNIV PRESS, 2021-06-01)