Melbourne Law School - Research Publications

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    Decarbonization in state-owned power companies: Lessons from a comparative analysis
    Benoit, P ; Clark, A ; Schwarz, M ; Dibley, A (Elsevier, 2022-06-25)
    A rapid decarbonization of the electricity system is urgently required for the Paris Agreement objectives to stand a reasonable chance of being met. While state-owned power companies (SPCs) are the dominant firm type in the global electricity sector, representing nearly two thirds of global electric power generation capacity, most climate policy literature focuses on private sector companies when analyzing decarbonization interventions. SPCs’ distinct corporate governance structures, objectives, relationships with government, and sources of finance, however, can be markedly different from those of private companies. Here, we develop a framework for analyzing the extent to which common and divergent features of SPCs, and the markets in which they operate, affect their relationship to government interventions on decarbonization. We also consider the implications of these relationships for the effective implementation of sector-wide decarbonization strategies. We then apply this framework using a comparative case study analysis of six major SPCs, and highlight how differences in their agency, motivation, capacity, and market exposure may result in different potential responsiveness to government regulatory, policy and market interventions on decarbonization. We generalize these findings by developing four SPC archetypes and illustrate how they might respond differently to government interventions targeting decarbonization. Our analysis posits that SPCs can, under the guidance of governments pursuing ambitious climate policy, be more effective vehicles for decarbonization relative to private sector companies, particularly when they operate with a high degree of operational independence, are insulated from competitive pressures, and have the financial and technical capacity to invest in the decarbonization of their asset base. Similarly, market-wide policy interventions, such as carbon pricing mechanisms, could in practice be less effective interventions with respect to SPCs than their private counterparts when the SPC is ill-equipped to translate these incentives into decarbonization action because it is mandated to pursue supplementary objectives other than profit maximization alone. Ultimately, governments will need to step up their climate action to achieve carbon neutrality. SPCs can, and where they are major market players, must be key actors in driving decarbonization when the appropriate interventions are utilized and therefore deserve significantly more attention in the climate policy debate.
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    National COVID debts: climate change imperils countries' ability to repay
    Dibley, A ; Wetzer, T ; Hepburn, C (Nature Research, 2021-04-06)
    Analysis reveals three ways to boost green investment and achieve a resilient recovery from the coronavirus pandemic.
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    When does “Leviathan” innovate? A legal theory of clean technological change at government-owned electric utilities
    Dibley, A (Harvard Law School, 2023)
    The electricity system in the United States comprises thousands of government-owned power utilities. Globally, such government-owned companies remain the dominant corporate structure through which electricity is produced and transmitted. Given their prevalence, the willingness and speed of these firms to adopt new clean electricity generation and transmission technologies could have significant implications for reducing greenhouse gas emissions, and the economic and social consequences that follow. Despite the importance of these companies, there have been few studies about why some public power utilities adopt new technologies more readily than others. Economists who have written about innovation at government-owned companies have tended to focus narrowly on how the resources and competencies of those firms shape innovation outcomes. In this Article, I put forward a legal theory to explain innovation. I suggest that the interaction between the corporate governance and financial rules of the firm, and the interests of host governments play a central role in shaping their innovation outcomes. I test the theory through a comparative case study of two significant public power utilities— the Tennessee Valley Authority and the New York Power Authority. To understand periods of clean energy innovation (or lack thereof) throughout their history, I draw on 43 confidential interviews with senior executives, officials, and observers of the firms. I also rely on historical, legal, operational, and financial documents of both firms dating back to the 1930s, to evaluate their technological investment decision-making over time. The theory and evidence in this Article suggest that policymakers eager to achieve technological change at government-owned utilities should reform the “creative” laws that govern the managers’ risk exposure in adopting new technologies. Also, they should reform the “destruction” rules on debt and tariffs that can lock in incumbent technologies.
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    Climate risk assessments must engage with the law
    Wetzer, T ; Stuart-Smith, R ; Dibley, A (AAAS, 2024-01-11)
    Climate-related financial risk is the dominant frame through which many companies, investors, and regulators engage with climate change. We argue that developments in legal action mean that the basis for these assessments, which focus on physical and transition risks (1), is no longer accurate. Accounting for the legal system substantially alters the distribution of climate-related risk between firms, governments, and the public. Drawing on analysis of climate litigation, regulatory enforcement, and other legal action, we propose a framework that accounts for how legal action shifts or amplifies physical and transition risk exposures and creates additional climate risk exposures. We then preview five qualitative and quantitative approaches that can be applied to assess the implications of legal action for firms’ climate-related risk exposure.
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    Alleviating the confusion around content analysis: A comment in response to Wainstein, Elliott & Austin 2023
    Lynch, F ; Gillam, L ; Vears, DF (Wiley, 2023)
    We came across, and applaud, the article from Wainstein, Elliott & Austin recently published in the Journal of Genetic Counseling (2023) for providing a much-needed overview of the considerations for the use of qualitative methodologies in genetic counselling research. We agree wholeheartedly that sufficient training and rigour is often lacking in the qualitative research conducted in this field and that this article offers a good overview of many of the most useful qualitative analysis methods. However, as researchers with extensive experience in both qualitative analyses and supervision of those undertaking such analyses, we were concerned about the description of a particular method of analysis: content analysis. We are particularly familiar with this method, having used it frequently in our own research, and also recently published an article clearly describing this methodology and its utility (see Vears & Gillam (2022)). As such, we felt compelled to add to Wainstein and colleagues’ description of what content analysis is and outline, from our shared experience, the potential uses of this incredibly valuable qualitative analysis method.
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    Death Penalty in Asia Special Issue: Introduction
    Lindsey, T ; Pausacker, H (Melbourne Law School / SSRN, 2023-11-08)
    This special issue of the Australian Journal of Asian Law (AJAL) investigates issues relevant to the death penalty in Asia: the continued common use of the death penalty in the region; the procedures used to implement it; the justifications offered in its support, as well as the critiques offered by the reformers who seek its abolition and the campaigns they lead to that end. The articles in this issue therefore explore the current state of laws and policies regulating capital punishment in Asian countries, variously describing their substance and history, examining selected judicial decisions of importance, or investigating recent legal and policy changes.
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    The 2023 report of the Lancet Countdown on health and climate change: the imperative for a health-centred response in a world facing irreversible harms.
    Romanello, M ; Napoli, CD ; Green, C ; Kennard, H ; Lampard, P ; Scamman, D ; Walawender, M ; Ali, Z ; Ameli, N ; Ayeb-Karlsson, S ; Beggs, PJ ; Belesova, K ; Berrang Ford, L ; Bowen, K ; Cai, W ; Callaghan, M ; Campbell-Lendrum, D ; Chambers, J ; Cross, TJ ; van Daalen, KR ; Dalin, C ; Dasandi, N ; Dasgupta, S ; Davies, M ; Dominguez-Salas, P ; Dubrow, R ; Ebi, KL ; Eckelman, M ; Ekins, P ; Freyberg, C ; Gasparyan, O ; Gordon-Strachan, G ; Graham, H ; Gunther, SH ; Hamilton, I ; Hang, Y ; Hänninen, R ; Hartinger, S ; He, K ; Heidecke, J ; Hess, JJ ; Hsu, S-C ; Jamart, L ; Jankin, S ; Jay, O ; Kelman, I ; Kiesewetter, G ; Kinney, P ; Kniveton, D ; Kouznetsov, R ; Larosa, F ; Lee, JKW ; Lemke, B ; Liu, Y ; Liu, Z ; Lott, M ; Lotto Batista, M ; Lowe, R ; Odhiambo Sewe, M ; Martinez-Urtaza, J ; Maslin, M ; McAllister, L ; McMichael, C ; Mi, Z ; Milner, J ; Minor, K ; Minx, JC ; Mohajeri, N ; Momen, NC ; Moradi-Lakeh, M ; Morrissey, K ; Munzert, S ; Murray, KA ; Neville, T ; Nilsson, M ; Obradovich, N ; O'Hare, MB ; Oliveira, C ; Oreszczyn, T ; Otto, M ; Owfi, F ; Pearman, O ; Pega, F ; Pershing, A ; Rabbaniha, M ; Rickman, J ; Robinson, EJZ ; Rocklöv, J ; Salas, RN ; Semenza, JC ; Sherman, JD ; Shumake-Guillemot, J ; Silbert, G ; Sofiev, M ; Springmann, M ; Stowell, JD ; Tabatabaei, M ; Taylor, J ; Thompson, R ; Tonne, C ; Treskova, M ; Trinanes, JA ; Wagner, F ; Warnecke, L ; Whitcombe, H ; Winning, M ; Wyns, A ; Yglesias-González, M ; Zhang, S ; Zhang, Y ; Zhu, Q ; Gong, P ; Montgomery, H ; Costello, A (Elsevier BV, 2023-12-16)
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    Sentencing offenders with self-induced mental disorders: towards a theory of meta-culpability.
    Walvisch, J (Informa UK Limited, 2023)
    Around Australia, the Verdins principles govern the sentencing of offenders with mental health problems. The first Verdins principle holds that mental health problems may reduce an offender's culpability, and thus the punishment that is considered just in the circumstances. But how should this principle be applied where the offender's mental health condition was triggered by drug use, or by a failure to take prescribed psychiatric medication? Should the offender be precluded from relying on the principle because of the self-induced nature of their condition, or should they continue to receive a sentencing reduction because their mental functioning was impaired at the time of the offence? This article analyses the way in which Australian courts have addressed this issue to date, highlighting key problems with the current approach. It uses Duff's account of crime and punishment to sketch out an alternative approach that focuses on the offender's 'meta-culpability': their culpability for the reduced level of culpability ordinarily associated with impaired mental functioning. It concludes by demonstrating how that approach would work in practice, by applying it to the facts of a recent Victorian criminal case. Keywords: communicative retributivism; culpability; drug-induced mental health problems; medication non-adherence; mental disorder; mental health; mental illness; punishment theory; sentencing; Verdins principles.
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    Data Breach Notification Laws—Momentum Across the Asia-Pacific Region
    Prictor, M (Springer Science and Business Media LLC, 2023)
    In late 2022, leading Australian health insurer Medibank Private experienced a catastrophic cyber- a ack that saw the data – including highly-sensitive health information – of close to 10 million current and former clients stolen. The data were subsequently published on the dark web a/er Medibank refused to pay a US$10 million ransom. The published records contained identifiable information about people’s HIV status, drug and alcohol treatment and reproductive care. Compared to breaches of purely financial or even identity information, health information hacks like this may cause significant personal distress and stigma that are hard to remedy. The Medibank hack is now subject to several class actions, from both shareholders and affected customers.