Melbourne Law School - Research Publications
Now showing items 1-12 of 1070
The best interests duty and corporate charities: The pursuit of purpose
Most Australian charities are incorporated. Yet most directors, legal advisers and commentators are hard pressed to articulate a fairly fundamental obligation of charity directors: to act in good faith in the best interests of their corporation. At a time when shareholder primacy is being increasingly questioned for for-profit corporations and consideration of stakeholders or purposes is being written into corporations legislation in other jurisdictions, there is even greater need to think about what interests ought to be considered by charity directors. We argue that to act in the best interests of an incorporated charity means to act in a way that the directors genuinely believe will advance its purposes. As this is still a fairly amorphous standard, we suggest that it can be given content by means of directors’ obligations to give genuine consideration in the exercise of their powers in seeking to advance the corporation’s purposes.
Special Issue on the Australian Law Reform Commission Legislative Mapping Project [Overview]
(Thomson Reuters (Professional), 2021)
Simplifying the law is not a straightforward task. As Commissioner Hayne noted in his Final Report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Financial Services Royal Commission), the task can only begin after examining how the existing law fits together and identifying the policies given effect by the law's various provisions.
Regulating for Loyalty in the Financial Services Industry
(Thomson Reuters (Professional), 2021)
A series of scandals in the financial services sector over the past 12 years has inspired concerted legislative action to protect customer interests. The Future of Financial Advice, Stronger Super, Protecting Consumers and Member Outcomes initiatives have each sought to reform the duties of loyalty, as variously expressed, owed by the providers of financial advice, superannuation funds and mortgage broking services to their customers. This article compares the legal regimes emerging from those initiatives with each other and with three other, analogous regimes: that applying to registered managed investment schemes, that applying to life insurers, and that applying to corporate directors generally. It finds that, although similarly motivated, both the substance and the modality of the regimes vary. This variation needs to be acknowledged and respected when considering the operation of the regimes.
Legislative Design – Clarifying the Legislative Porridge
(Thomson Reuters (Professional), 2021)
Legislative design directly affects the clarity, coherence and navigability of legislation. It is therefore of critical importance to regulated persons and entities as they seek to comply with legislative requirements, and to regulators and courts as they seek to interpret and apply them. Calls over many years for legislation governing corporate and financial services law in Australia to be simplified were reinforced by the Financial Services Royal Commission Final Report of 2019. The report recommended that, as far as possible, exceptions and qualifications to generally applicable norms of conduct be eliminated and that legislation identify expressly the fundamental norms of behaviour in respect of rules. These calls recently culminated in the commencement of a review into the legislative framework for corporations and financial services regulation by the Australian Law Reform Commission. This article examines the context behind these calls and engages with the ongoing debate about legislative design and simplification of law. In addition to outlining the issues, the article provides the context for the articles that follow in this Special Issue.
Guidelines for Modeling and Reporting Health Effects of Climate Change Mitigation Actions
(US DEPT HEALTH HUMAN SCIENCES PUBLIC HEALTH SCIENCE, 2020-11-01)
BACKGROUND: Modeling suggests that climate change mitigation actions can have substantial human health benefits that accrue quickly and locally. Documenting the benefits can help drive more ambitious and health-protective climate change mitigation actions; however, documenting the adverse health effects can help to avoid them. Estimating the health effects of mitigation (HEM) actions can help policy makers prioritize investments based not only on mitigation potential but also on expected health benefits. To date, however, the wide range of incompatible approaches taken to developing and reporting HEM estimates has limited their comparability and usefulness to policymakers. OBJECTIVE: The objective of this effort was to generate guidance for modeling studies on scoping, estimating, and reporting population health effects from climate change mitigation actions. METHODS: An expert panel of HEM researchers was recruited to participate in developing guidance for conducting HEM studies. The primary literature and a synthesis of HEM studies were provided to the panel. Panel members then participated in a modified Delphi exercise to identify areas of consensus regarding HEM estimation. Finally, the panel met to review and discuss consensus findings, resolve remaining differences, and generate guidance regarding conducting HEM studies. RESULTS: The panel generated a checklist of recommendations regarding stakeholder engagement: HEM modeling, including model structure, scope and scale, demographics, time horizons, counterfactuals, health response functions, and metrics; parameterization and reporting; approaches to uncertainty and sensitivity analysis; accounting for policy uptake; and discounting. DISCUSSION: This checklist provides guidance for conducting and reporting HEM estimates to make them more comparable and useful for policymakers. Harmonization of HEM estimates has the potential to lead to advances in and improved synthesis of policy-relevant research that can inform evidence-based decision making and practice. https://doi.org/10.1289/EHP6745.
Old Challenges or New Issues? Genetic Health Professionals' Experiences Obtaining Informed Consent in Diagnostic Genomic Sequencing.
(Informa UK Limited, 2021-01)
BACKGROUND: While integrating genomic sequencing into clinical care carries clear medical benefits, it also raises difficult ethical questions. Compared to traditional sequencing technologies, genomic sequencing and analysis is more likely to identify unsolicited findings (UF) and variants that cannot be classified as benign or disease-causing (variants of uncertain significance; VUS). UF and VUS pose new challenges for genetic health professionals (GHPs) who are obtaining informed consent for genomic sequencing from patients. METHODS: We conducted semi-structured interviews with 31 GHPs across Europe, Australia and Canada to identify some of these challenges. RESULTS: Our results show that GHPs find it difficult to prepare patients to receive results because a vast amount of information is required to fully inform patients about VUS and UF. GHPs also struggle to engage patients - many of whom may be focused on ending their 'diagnostic odyssey' - in the informed consent process in a meaningful way. Thus, some questioned how 'informed' patients actually are when they agree to undergo clinical genomic sequencing. CONCLUSIONS: These findings suggest a tension remains between sufficient information provision at the risk of overwhelming the patient and imparting less information at the risk of uninformed decision-making. We suggest that a shift away from 'fully informed consent' toward an approach aimed at realizing, as far as possible, the underlying goals that informed consent is meant to promote.
Health Synergies across International Sustainability and Development Agendas: Pathways to Strengthen National Action
Since 2015 there has been a surge of international agendas to address a range of global challenges: climate change (Paris Agreement), sustainable development (Agenda 2030), disaster risk reduction (Sendai Framework) and sustainable urban transformation (New Urban Agenda). Health is relevant to all of these agendas. Policymakers must now translate these global agendas into national level policies to implement the agreed goals in a coherent manner. However, approaches to synergise health activities within and across these agendas are needed, in order to achieve better coherence and maximise national level implementation. This research evaluated the framing of human health within these agendas. A content analysis of the agendas was conducted. Findings indicate (i) the importance of increased awareness of health systems strengthening as a helpful framework to guide the integration of health issues across the agendas, (ii) only two health themes had synergies across the agendas, (iii) the lack of a governance mechanism to support the integration of these four agendas to enable national (and sub-national) governments to more feasibly implement their ambitions, and (iv) the vital component of health leadership. Finally, planetary health is a relevant and timely concept that can support the urgent shift to a healthy planet and people.
Leader Humility and Knowledge Sharing Intention: A Serial Mediation Model.
(Frontiers Media SA, 2020)
Purpose: This paper examines the influence of leader humility on knowledge sharing intention. Drawing on social exchange theory (SET), we test the direct and indirect mechanisms to explain the influence leader humility has on knowledge sharing intention. Design/Methodology/Approach: A two-wave, time-lagged field study was conducted. We surveyed 252 professional employees from Australia. Findings: Results show a significant direct, positive association between leader humility and knowledge sharing intention. While leader humility had a direct, positive association with affective trust in supervisor and work engagement, it did not directly impact on organizational citizenship behaviors directed toward the individual (OCB-I). There were three SET-related, serial mediators in the relationship between leader humility and knowledge sharing intention. These were affective trust, work engagement, and OCB-I. Research Limitations/Implications: Future studies should collect multi-source data such as peers' or supervisors' ratings of the focal respondents' work engagement, OCB-I, and knowledge sharing behaviors to augment single-source data. Future studies could adopt an affect theory of social exchange to further explore the relationships tested in this study. Originality/Value: This study contributes to the affect SET and knowledge management literature on how leadership behaviors impact the intention to share knowledge. Our study highlights the preference of the willingness to share knowledge with their co-workers is mediated by affective trust in their immediate supervisors, work engagement, and OCB-I that are equally important as treating their subordinates with humility.
Transdisciplinary Research Priorities for Human and Planetary Health in the Context of the 2030 Agenda for Sustainable Development
Human health and wellbeing and the health of the biosphere are inextricably linked. The state of Earth's life-support systems, including freshwater, oceans, land, biodiversity, atmosphere, and climate, affect human health. At the same time, human activities are adversely affecting natural systems. This review paper is the outcome of an interdisciplinary workshop under the auspices of the Future Earth Health Knowledge Action Network (Health KAN). It outlines a research agenda to address cross-cutting knowledge gaps to further understanding and management of the health risks of these global environmental changes through an expert consultation and review process. The research agenda has four main themes: (1) risk identification and management (including related to water, hygiene, sanitation, and waste management); food production and consumption; oceans; and extreme weather events and climate change. (2) Strengthening climate-resilient health systems; (3) Monitoring, surveillance, and evaluation; and (4) risk communication. Research approaches need to be transdisciplinary, multi-scalar, inclusive, equitable, and broadly communicated. Promoting resilient and sustainable development are critical for achieving human and planetary health.
Moral Limits of Brain Organoid Research
(SAGE PUBLICATIONS INC, 2019-12-01)
Brain organoid research raises ethical challenges not seen in other forms of stem cell research. Given that brain organoids partially recapitulate the development of the human brain, it is plausible that brain organoids could one day attain consciousness and perhaps even higher cognitive abilities. Brain organoid research therefore raises difficult questions about these organoids' moral status - questions that currently fall outside the scope of existing regulations and guidelines. This paper shows how these gaps can be addressed. We outline a moral framework for brain organoid research that can address the relevant ethical concerns without unduly impeding this important area of research.
'Calibrating to scale: a framework for humanitarian health organizations to anticipate, prevent, prepare for and manage climate-related health risks'
Climate Change is adversely affecting health by increasing human vulnerability and exposure to climate-related stresses. Climate change impacts human health both directly and indirectly, through extreme weather events, changing distribution of health risks, increased risks of undernutrition, population displacement, and greater risks of injuries, disease, and death (Ebi, K., Campbell-Lendrum, D., & Wyns, A. The 1. 5 health report. WHO. 2018). This risk amplification is likely to increase the need for humanitarian support. Recent projections indicate that under a business as usual scenario of sustained greenhouse gas emissions, climate change could double the demand for humanitarian assistance by 2050 (World Health Organization. Operational Framework for building climateresilient health systems. WHO. 2015). Humanitarian assistance is currently not meeting the existing needs, therefore, any additional burden is likely to be highly challenging.Global health advocates, researchers, and policymakers are calling for urgent action on climate change, yet there is little clarity on what that action practically entails for humanitarian organizations. While some humanitarian organizations may consider themselves well designed to respond, climate change as a transversal threat requires the incorporation of a resilience approach to humanitarian action and policy responses.By bringing together authors from two historically disparate fields - climate change and health, and humanitarian assistance - this paper aims to increase the capacity of humanitarian organizations to protect health in an unstable climate by presenting an adapted framework. We adapted the WHO operational framework for climate-resilient health systems for humanitarian organizations and present concrete case studies to demonstrate how the framework can be implemented. Rather than suggest a re-design of humanitarian operations we recommend the application of a climate-lens to humanitarian activities, or what is also referred to as mainstreaming climate and health concerns into policies and programs. The framework serves as a starting point to encourage further dialogue, and to strengthen collaboration within, between, and beyond humanitarian organizations.
Time to rethink the law on part-human chimeras
(OXFORD UNIV PRESS, 2019-10-01)
It may soon be possible to generate human tissues and organs inside of part-human chimeras via a technique known as interspecies blastocyst complementation. Using Australian legislation as a case study, we show why this technique of creating part-human chimeras falls within the gaps of existing legislation. We give an overview of the key ethical issues raised by part-human chimera research, and we describe how well these issues are met by a range of possible regulatory approaches. We ultimately argue that regulation of part-human chimera research should be (re)designed to balance two key aims: to facilitate ethical research involving part-human chimeras and to prevent unethical experimentation with chimeras that have an uncertain-and potentially substantial-degree of moral status.