Cluster 1: International Economic Law
The TLPC will be an idea vehicle to marshal the growing number of staff members working in various areas of international economic law and policy. Their increasing domestic and international prominence will allow for outreach into the government, non-government and private sectors both at home and abroad.
Researchers
- Dr. Andy Schmulow
- Professor Markus Wagner
- Associate Professor Gabriel Garcia
- Associate Professor Sheikh Solaiman
- Dr. Afroza Begum
- Professor Warwick Gullett
- Professor Luke Nottage
Unforgettable Catastrophic Memories of COVID-19: A Hollow Search for an International Mechanism to Hold China Accountable
This article aims to investigate whether the current international framework provides any meaningful mechanisms to hold China accountable for COVID by placing special focus on agreements relevant to public health emergency of international concerns. It claims that while China’s reckless conduct and passivity effectively constitute a breach of international obligations, it is very unlikely that a successful claim can be pursued under the international framework.
Revisiting the Recent Trend of Enforcement of Corporate Corruption Cases: A Comparative Study between Australia and the UK
The fight against corruption and bribery (CB) has gained momentum in Australia engendered by globalisation, interconnectedness of national economies and sophistication of international business. CB issues have been progressively highlighted in recent legislative and judicial initiatives, and the major proposed changes to Criminal Code Act 1995 by the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (CCC Bill) (Cth) is reflective of Australia’s positive commitment to eliminate CB in businesses. Yet, facilitation payment (FP) defence as endorsed by the Act 1995, low prosecution and the failure of the CCC Bill to outlaw FP have raised significant controversy about the appropriateness and efficacy of CB’s regulatory framework.
The CCC Bill aims to expand the scope of existing foreign bribery offences and remove important impediments to a successful prosecution. If passed, the new Act will introduce a strict liability offence and a Deferred Prosecution Agreement (DPA) scheme enabling the Commonwealth Director of Public Prosecution to enter into a DPA with a corporation, subject to meeting certain conditions. However, the CCC Bill is yet to be passed by the Parliament (lapsed for the second time on 25 July 2022).
This article examines the recent trend of enforcement of CB cases in Australia in comparison with the United Kingdom. It would conclude that even though Australia’s enforcement of laws on CB has evidently increased in recent years, the UK has gone ahead with more onerous provisions coupled with a strong culture of enforcement and prosecution reinforced by DPA.
Wearable Sensor Development for the Occupational Health and Safety Improvement of Construction Workers
This project aims to develop wearable devices (WDs) that will reduce injury to workers by detecting and warning the user of potential injury risk, while reducing associated costs for businesses. Australia’s construction industry generates over $360 billion in revenue, producing around 9% of its Gross Domestic Product. However, this industry is also one of the largest sources of work-related injuries. The Safe Work estimated the costs of work injuries and diseases in Australia at AUS $61 billion. Hence, there is a significant amount of national and international interest (both research and commercial) in the development of WDs. Furthermore, the wearable technology industry is rapidly expanding and projected to reach $265.4 billion by 2026.
Despite significant benefits and innovations associated with the use of these novel devices, privacy and security remain as areas of concern thereby preventing further widespread use. Whilst the recent proliferation of wearable technologies motivates organisations to develop WDs to identify, assess, and prevent health related injury, the data collected through the process can be ‘quite lucrative for those companies who seek to commercially exploit it’. Some WDs record a considerable amount of sensitive and private information, including health-related information of individuals. More fundamentally, some are also used to process and share large amounts of personal information, capable of tracking individuals, their behaviours and surroundings; all of which lead to major risks and privacy threats. The vast majority of these concerns relate to the secure storage of personal data, which may otherwise be vulnerable to being hacked, stolen, manipulated or intercepted and thereby providing access to cameras and microphones and so on present on these WDs. Regulation aims to address and redress some of these concerns through mandating organisations to conform to relevant laws, standards and principles in dealing with the usage, collection, storage and sharing of personal information. This project is designed to achieve three specific objectives:
- To develop in-house capability to measure the musculoskeletal forces and effort on different critical body parts of a worker during construction related tasks and postures.
- Use artificial intelligence to correlate the laboratory movement recording system (16 XSens sensors) to a more portable and wearable device.
- To review the Occupational health and safety (OHS) standards and other legal requirements, which will inspire the development and commercialisation of WDs.
The first two points aim to inform the construction industry on how to improve safety standards through the collecting and analysing of data obtained through WDs. Whilst my research focuses specifically on the third point which includes critically reviewing the Therapeutic Goods (Medical Devices) Regulations 2002, Privacy Act 1988 (Cth) and principles of Australia. The review seeks to ensure the proposed product legally complies with privacy, safety and security standards. Additionally, this study evaluates the UK’s legal approach to WDs, which informs what measures can more effectively manage those concerns and facilitate the use of WDs for the benefit of relevant stakeholders. This evaluation will also help identify and mitigate risk factors pertaining to the industry, unveil flaws or gaps in these laws, and influence reforms to strengthen the Australian legal parameters governing WDs.
Overall, the collaborative nature of this project by engaging subject matter experts, spanning across multiple disciplines (e.g. Law, International Relations, Engineering and Information Sciences) will result in the provision of independent high-quality data. All of which aims to formulate a strategy in tackling the issues raised. Key findings from this research include, strengthening the engagement between Australian industries with foreign partners; positively promoting public debate during a time of economic and strategic uncertainty; and finally influencing government policy and legal reforms to support and guide WDs.
Weaponised Trade
This project will provide the first systematic analysis of Weaponised Trade between the US and China and its impact on Australia’s interests. Weaponised Trade, and its spillover effects, pose one of the most significant and immediate risks to Australia’s security and resilience, undermining the rules-based international order and increasing regional instability.
The project consists of three separate but interrelated studies to provide an integrated, policy-oriented perspective: analytic research based on secondary data, primary, empirical data collection of stakeholder capacity to respond to Weaponised Trade, and a Delphi process to distil expert recommendations on policy, economic and legal responses.
The objective of the project is to provide research from subject matter experts, providing high-quality data and interdisciplinary knowledge to formulate Australia’s response to Weaponised Trade. The project is designed to provide:
- Independent,high qualityinputs into government policy;
- Provide a more informed basis for Australian industry to engage with foreign partners;
- Contribute to academic research across law, international relations and economics; and
- Further public debate at a time of increasing economic and strategic uncertainty.
The weaponisation of trade is a rapidly emerging threat to national security. Trade and economic mechanisms are now recognised by the Department of Defence as strategically-significant grey zone activities that are intended to be coercive, and are “being used in our immediate region against shared interests in security and stability.” Strategic competition and the trade war between the US and China are predicted to escalate still further over the next 5-10 years as the two powers battle for economic and technological supremacy.
Weaponised Trade is problematic because it bypasses established international i rules in favour of unilateral action. It is deployed as a ‘power play’ by powerful actors both retributively and defensively, usually to further a political agenda in which trade is not the main issue.
The key weapons of grey zone trade wars include antidumping duties, countervailing duties, safeguard measures, and strategic export restrictions. These grey zone activities put Australia at risk at a number of levels, all of which will be addressed by this project:
Threats to Australian Economic and Political Interests: New trade-restrictive measures are being introduced globally at a rate of between three and six times of recent historic levels. 2020 has seen these measures applied increasingly to Australia, on a products including beef, barley, and more recently investigations into wine. Further threats against Australia stand to interrupt global and regional supply chains and export markets for Australian products, and the risk of systemic economic coercion may further harm revenue from services such as tourism and education. This directly harms Australian business interests but also fuels public backlash towards the perceived aggressor. We will undertake the first comprehensive empirical analysis of the impact of Weaponised Trade on Australia’s businesses and identify what is required to better equip businesses and government to respond appropriately.
Threat to the International Rules-Based Order: The second level of threat is the challenge that Weaponised Trade poses to the rules-based system of international law. International order is vital to the security of a middle power such as Australia and has come under threat by large powers seeking to bypass established rules and dispute resolution processes. As the World Trade Organization (WTO) observes, “[t]he proliferation of trade-restrictive actions and the uncertainty created by such actions could place economic recovery in jeopardy. Escalation carries large risks for global trade, with impacts on economic growth, jobs and consumer prices around the world. We will map the regional impacts of Weaponised Trade and the scope for responses using current trade norms.
Threats to Peace and Security: Thirdly, escalated trade tensions generate relationship friction, increasing the risk of flash points over physical security issues such as territory. In a world that is becoming rapidly more protectionist, and as China-US tensions heighten, Australia is struggling to position itself in a way that protects its economic, political and security interests. As the 2016 Defence White Paper explains, “Australia’s security and prosperity relies on a stable, rules-based global order which supports the peaceful resolution of disputes, facilitates free and open trade and enables unfettered access to the global commons to support economic development.” To best determine how Australia would position itself, and the advantages and disadvantages of various policy responses, we will bring together a unique group of multidisciplinary experts in a Delphi Process (explained below) to offer new and rich perspectives.
China Trade Terms and Their Barriers: A Comparison of their Impacts on Australia and Brazil
When China became a member of the WTO in 2001, there was also at that time a new round of negotiations aimed at, among other things, the full integration of the agriculture sector within the WTO’s commitments. Australia and Brazil have traditionally worked together in the agriculture sector at the multilateral level, both being major exporters of agricultural commodities.
Almost twenty years later, the optimism about fully integrating either agriculture or China into the multilateral trading system has gone. Little progress has been made on the long-standing barriers to freer trade in agriculture within the WTO system, while China continues to be a unique economic and political player. Furthermore, China is now disputing the leading position that the US and EU have traditionally held within the WTO. The resultant US-China “trade war” may have significant implications for the multilateral trading system, including the possible resurgence of unilateral trade measures (which may also contribute to the demise of the multilateral trade system embodied by the WTO). At the same time as these troubles within the WTO, a number of significant preferential trade agreements (PTAs) have emerged which many believe have the propensity to replace the WTO as tools for international trade governance, though these PTAs have not yet had such an impact.
China is now viewed by many as the most important trading partner for both Brazil and Australia and both countries are among the top five target countries for Chinese foreign direct investments. This new era of international trade governance and the important positions both countries hold vis-à-vis China raises a number of questions: What are the new prevailing legal instruments that are sustaining and protecting trade exports? How are they impacting Chinese imports from Australia and Brazil? What are the different impacts of these legal strategies on a developed country, such as Australia, and a developing country, such as Brazil? Are there new fragmentations in the forms of trade regulation that are based on regional and geographical proximities? In this new environment should countries such as Australia and Brazil, while sharing similar interests, pursue joint or coordinated trade strategies? We consider these to be relevant questions arising for the upcoming third decade of the twenty-first century.
Our project aims at (i) understanding the main trade barriers, mostly non-tariff barriers, faced by Australian and Brazilian commodities exports – such as agricultural goods and mining exports – to China; (ii) mapping the types of regulation supporting those barriers; (iii) identifying if these regulations follow accepted standards of regulation at the international level or if there are features that are particular to China in its standards or decision-making process; and (iv) identifying venues for joint-action by countries such as Australia and Brazil in a scenario of China’s potential economic hegemony.
Offshore Development and Foreign Investment Protection
- Professor Markus Wagner
- Dr. Yucong Wang
- Professor Warwick Gullett
Offshore development plays a significant role in boosting national economies. There is global investment interest in a range of new offshore technologies, especially aimed at generation of renewable energy or utilisation of seabed resources. This field has primarily been studied in the sphere of public international law, especially law of the sea.
This project, however, will examine offshore development through the lens of foreign investment law, including how foreign investment in offshore development is regulated and protected under investment treaties, and the existence and adequacy of compensation funds should environmental harm be caused by offshore operations.
In particular, this project will focus on two aspects – foreign investment in the laying and operation of submarine cables and pipelines and in offshore energy development. A key aspect will be the vulnerability of foreign investments in offshore projects to devaluation where they occur in contested maritime zones or beyond the limits of national jurisdiction.
Time for an Australia-India FTA: Helpful IEL Perspectives
Conference to be held on 23-24 November 2021
This conference will help develop some of the issues likely to arise if negotiations of such a treaty were to progress beyond the current status. Issues covered will range from trade in goods and services, trade barriers (tariff and non-tariff barriers), including TBT and SPS, as well as trade related IP matters. In addition, the conference will discuss non-trade issues relevant to a trade agreement such as human rights, health and the environment.