Melbourne Law School - Research Publications
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ItemMandating Symbolic Patriotism: China’s Flag and Anthem in the Hong Kong Special Administrative Region(Cambridge University Press (CUP), 2021)The Hong Kong statute criminalizing disrespect of the Chinese national anthem, passed in 2020, is one of many recent moves to suppress political dissent in the former British colony. The law restricts freedom of political expression, but its constitutionality is practically assured courtesy of earlier decisions upholding laws against flag desecration. This article draws on sociological and political literature to argue that symbolic nationalism, particularly when given the force of law, is a tool of the authoritarian state. Against this backdrop, it critically and comparatively analyses Hong Kong judicial decisions upholding the suppression of symbolic dissent, assessing their doctrinal coherence, normative defensibility, and consequences. It concludes with observations on the efficacy of attempts to enforce patriotic orthodoxy and on how deference to authoritarianism affects the rule of law.
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ItemNumbing the pain or diffusing the pressure? The co-optation of People for the Ethical Treatment of Animals's "naming and shaming" campaign against mulesing(WILEY, 2021-08-07)Abstract This article examines a high‐profile “naming and shaming” campaign launched by the activist group People for the Ethical Treatment of Animals targeting the controversial sheep husbandry practice of mulesing. This campaign led to important changes to the “rules of the game” governing global merino wool production. This article suggests that contests between activists and other stakeholders over the framing of the policy problem and activists' choice of strategy can result in co‐optation of activist ideas by corporate actors. The possibility of co‐optation of ostensibly successful social movement campaigns highlights the importance of considering such campaigns in light of movements' values and longer‐term goals.
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ItemRapid acute care genomics: Challenges and opportunities for genetic counselors(WILEY, 2021-02)Genomic medicine in pediatric acute care is showing great promise, with rapid results from exome and genome sequencing returned within days providing critically important information for treatment and management of seriously ill children. Many have suggested that rapid acute care genomics presents novel genetic counseling issues. This is due to the need for rapid response to referrals, the immense emotional distress that parents are likely to experience when their child is in acute care, and the unfamiliar environment of the acute care setting. To explore the practice of genetic counselors in this setting, we conducted qualitative interviews with 16 genetic counselors (GCs), representing a large proportion of GCs at the frontline of providing genetic counseling in acute care settings in Australia. Interviews revealed themes describing genetic counseling in acute care, including practical challenges of counseling within a rapid turnaround time, similarities with other contexts such as prenatal counseling, and the need for education of other health professionals. Interestingly, GCs did not raise concerns in the interviews for parents' ability to provide informed consent for rapid genomic sequencing. GCs also encountered practical and organizational challenges with counseling in this setting where 24-hr care is provided, at odds with traditional '9 to 5' Genetics service delivery. Working closely in a multidisciplinary team was common and participants believed that GCs are well positioned to take a leading role in the education of other health professionals as rapid acute care genomics becomes routine clinical practice. Despite views that genetic counseling practice in rapid acute care genomics is unique, these exploratory data suggest that GCs are flexible, adaptable, and sufficiently skilled to deliver patient-centered counseling in this setting. Our work indicates GCs are ready and willing to contribute at an early stage of adoption of genomic investigations in acute care.
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ItemCross-border insolvency law in Hong Kong: Recognition of foreign schemes of arrangement(Wiley, 2021-09-01)Abstract Hong Kong has no statutory cross‐border insolvency regime. Hong Kong courts have to resort to common law principles in circumstances where they are requested to recognise foreign insolvency proceedings and grant assistance. The nature and scope of these principles have been the subject of extensive debate in common law jurisdictions. In Re CW Advanced Technologies Ltd [2018] HKCFI 1705, Harris J identified the uncertainties associated with the common law position in Hong Kong. These uncertainties include whether a Hong Kong court may recognise a Singapore moratorium granted to facilitate a scheme of arrangement and, if so, whether the court may grant recognition where Singapore (i.e., the foreign jurisdiction) is not the country of incorporation. Harris J also noted the ‘urgent need to enact a statutory cross‐border insolvency regime’. This article examines the scope of the common law powers in Hong Kong and seeks to clarify the possibility for members within a corporate group located outside Singapore, where the holding company has its centre of main interests in Singapore or is otherwise eligible to use the Singapore scheme regime, to obtain recognition and assistance in Hong Kong.
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ItemSettling on a national Indigenous Australian 'voice'(WILEY, 2021-02-12)Abstract This article argues that the call for establishment of a national Indigenous ‘voice’ ought to be seen by the Australian government in historical context, primarily as a call for remediation for historical injustices, not just as an opportunity for improvement in the lives and governance of Indigenous Australians. Viewed this way, the call carries with it an imperative for government both to recognise the moral weight underpinning it and to be active in seeking to settle the matter, either by agreeing to the reform proposal or otherwise by negotiating an acceptable outcome. The article closes by considering possible ways in which settlement might occur.
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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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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.