The Use of Enforceable Undertakings as an Enforcement Mechanism in Environmental Law: Ensuring Transparency, Accountability, Certainty and Environmental Outcomes
Date: 21 October 2020, 12:30 – 1:30pm AEST via Zoom (Please contact Dr Dora Anthony for the link: email@example.com)
Presenter: Dr Sarah Wright
Abstract: Provisions permitting regulators to enter into voluntary enforceable undertakings (EUs) with alleged offenders are now included in numerous pieces of environmental legislation in NSW and other jurisdictions. EUs can be utilised as an alternative regulatory tool to prosecution, allowing a negotiated outcome to be reached in response to an alleged breach. This paper examines EUs entered into under NSW pollution law as a case study to consider the importance of ensuring transparency, accountability, certainty and environmental outcomes in the EU process and how these aspects might be improved. The guiding principles underlying the use of EUs, the frequency of utilisation of EUs and their content are examined. Comparisons are made between NSW and other jurisdictions, particularly within Australia, in order to consider elements that represent best practice in EUs. A number of matters are examined. Firstly, as a negotiated enforcement mechanism, transparency and accountability in the EU process are important. Aspects considered include the extent to which the incident and resulting environmental harm have been, and should be, described in the EU and whether a regulator should be required to publicly release reasons regarding why an EU was considered appropriate. These aspects assist with justifying the terms of the EU including the level of any “penalty” or “community benefit” component, such as contributions towards an environmental project. Second, the need for certainty in drafting the terms of an EU is examined. Certainty ensures the alleged offender knows the actions they must take. Further, it ensures public confidence in the enforceability of EUs in the event of a breach and consequently, their strength as an enforcement mechanism. Thirdly, consideration is given to the extent to which EUs have and should strive to achieve wider outcomes, such as educating the broader regulated community, embracing restorative justice mechanisms, and providing reparation to the community.
Corporate Manslaughter Laws in Singapore, Fiji and Australia: A Comparison
Speaker: Associate Professor Sheikh Solaiman
Date: 30 September 2020, 12:30 – 1:30pm AEST via Zoom Watch the 30th September recorded seminar
Abstract: Industrial homicides are now widely regarded as corporate manslaughter. Workplace deaths have been a global concern following the loss of 6,300 workers’ lives every day, totalling 2.3 million deaths per year at work across the globe. These alarming figures include fatalities that have occurred in Singapore, Fiji, and Australia ─ three common law countries. As revealed in Suva by a resident magistrate in July 2019, at least 160 workers reportedly die each year in Fiji, suggesting that this is an area which needs to be looked at immediately. Despite such a significant number of deaths and the adoption of the Australian Commonwealth scheme of corporate liability for Fiji a decade ago, no record of corporate manslaughter conviction has been found. Likewise, Singapore, which lacks a separate corporate manslaughter law, mirrors the same level of passivity in prosecuting corporations for homicide, though about 50 workers die there per year. Notably, Australia has been making steady progress towards reducing such casualties. This paper examines the corporate manslaughter laws of Singapore, Fiji and Australia, aimed at finding out if Australian state/territory laws can be of help in improving the corresponding laws of the other two nations.
Transoceanic Connections: a Legal Assessment of China’s and Japan’s Economic Engagement with Latin America and the Caribbean
Speaker: Dr Gabriel Garcia
Date: 16 September 2020, 12:30 – 1:30pm AEST via Zoom Watch the 16th September recorded seminar
The history of the economic relations between Asia and Latin America and the Caribbean (LAC) can be traced back to the sixteen century, when the Manila Galleons connected trade between Acapulco and Manila under the control of the Spanish Empire. In spite of these earlier encounters, it was not until the end of World War II that interactions between both regions flourished, first with the economic recovery of Japan and later, with the emergence of the Republic of Korea as a global economic powerhouse. More recently, India and China have also strengthened economic ties with LAC, contributing with the growth of trade and investment. Although many in Latin America have benefited from this reinvigorated interaction with Asia, governments in the region have shown little enthusiasm for understanding the implications of Asia’s economic progress and have not designed strategies to guide policymakers, businesses, investors and the broader community to engage effectively with Asia. This project aims to contribute to a better understanding among LAC stakeholders of the legal approaches used by China and Japan to advance their economic interests in the region.
Using an analytical framework borrowed from International Economic Law, this presentation reviews the models used by China and Japan to promote trade, investment and cooperation for development in LAC. It argues that Japan employs a more traditional approach to engage with LAC while China uses an eclectic platform that combines hard-law and soft-law mechanisms, giving preference to the latter over the former. By adopting this approach, China ensures that it has the flexibility to manage its relations with Latin America and reduces the risk of interference from other global powers, particularly, the United States, which has historically played a leading geopolitical role in the Americas.
Note: This presentation is part of the research project on ‘South America in the Asian Century: A Review of China’s and Japan’s Economic Engagement in the Region.’ The project was funded by the Institute of Developing Economies of the Japan External Trade Organisation (IDE-JETRO).
The United Nations Sustainable Development Goals (SDGs): An introduction and impact discussion
Speaker: Dr Belinda Gibbons
Date: 2 September 2020, 12:30 – 1:30pm AEST via Zoom Watch the 2nd September recorded seminar
Summary: Belinda will provide an introduction to the UN SDGs and how they are impacting all sectors including University teaching, research and governance. She will present the sustainable development networks that the University and the Faculty of Business and Law are signatories to and discuss how these may open collaborative opportunities for you.
Bio: Dr Belinda Gibbons is the sole academic representative for Australia and New Zealand on the United Nations Principles of Responsible Management Education Advisory Committee (PRME). The Faculty of Business and Law are signatories to PRME. She represents business higher education institutions in Southern Asia and the Pacific, and collaborates with other country committee members to direct responsible management education internationally. Her passion for embedding the UN Sustainable Development Goals within education and community received a Citation for Outstanding Contributions to Student Learning alongside becoming a Senior Fellow of the Higher Education Academy. Belinda works with all faculties across UOW, local councils, schools and community organisations to enable action towards realising the UN Sustainable Development Goals.
Technology, Displaced? The Risks & Potential of Artificial Intelligence for Fair, Effective & Efficient Refugee Status Determination
Speaker: Dr Niamh Kinchin
Date: 19 August 2020, 12:30 – 1:30pm AEST via Zoom Watch the August recorded seminar
Human vulnerability is at the core of refugee status determination (RSD) and human rights provides its regulatory frame, so to speak of AI within the refugee context may seem troubling at least, dystopian at worst. But the rapid development of AI in government decision-making will unlikely be slowed by such ethical quandaries. The potential integration of automation, machine learning and algorithmic decision-making into global migration regulation and policy has far-reaching implications for refugee law and the consequences for efficiency, legality, accountability, transparency and human rights warrant a timely and critical conversation about the possible impact of existing and future AI technologies on RSD.
Predictive analytics, biometrics, automated credibility assessments and algorithmic decision making are analysed through a lens of ‘risk and potential’, which is measured in terms of ‘fair, efficient and effective’ RSD. The opportunities that AI offers for efficiency and effectiveness in RSD are compelling. Faster data processing, the ability to undertake high-volume, repetitive tasks, increased consistency and up-to-date information, a capacity to plan for workloads and predict movements and the potential to ‘design out’ existing biases, promise to deliver positive outcomes for asylum seekers. But the risks of integrating AI in a decision-making process that is defined by human vulnerability loom large. The lack of transparency in algorithms may result in a denial of procedural fairness and algorithmic bias continues to be a vexing issue. If refugees and human rights are denied, international protection may be compromised. Technical and contextual issues may increase the potential for error, and unanswered questions remain around legality.
A Troubled History: Forcible Transfers and Deportations in International Criminal Law
Speakers: Dr Victoria Colvin and Dr Phil Orchard
Date: 24 June 2020, 12.30-1.30pm via Zoom Watch the June recorded seminar
Abstract: Forced transfers and deportations of civilian populations are a persistent, grim theme in atrocity crimes. Not only do the victims suffer the loss of homes, property, and community, but these acts also may be a prelude to other atrocity crimes. Criminalizing forced displacement not only responds to a major human rights and atrocities problem which is not directly covered by either refugee or international human rights law; it can also serve an important deterrent effect. The conduct has long been recognized as potentially wrongful in international law. However, establishing and prosecuting international crimes in this area has been a lengthy and challenging process. We examine the historical development of prohibitions against forced displacement, particularly that forms of forcible transfer and deportations can constitute war crimes and crimes against humanity. In recent times, we turn to the record of three international and hybrid courts where prosecutions of these crimes have occurred: the ECCC, the ICTY, and the ICC. We identify several challenges in codifying and prosecuting these crimes. As with many international crimes, delineating the elements of the offences, and therefore the conduct which is criminal in the international sphere, has been controversial along two axes. Particular to these crimes is that despite the harmful nature of the displacement, they may also be committed either to protect populations from, or in lieu of, other atrocities such as genocide, but also for reasons of military necessity and public security. In addition, the nature of the relationship between the two offences of deportation, in which a border is crossed, and forcible transfers, where it is not, has been a persistent question. The result is that these issues in combination mean that there is both an impetus to and an impediment for the prosecution of deportations and forcible transfers.
Commercial Advisory and Training Work within the University
Speaker: Distinguished Professor Stuart Kaye (UOW ANCORS)
Date: 20 May 2020, 12.30-1.30pm via Zoom
Abstract: The presentation will consider the opportunities available for commercial advisory and training work that can be undertaken within the University, both domestic and international. It will look at the types of work potentially available and tips on how such work might be found. The presentation also examines the University procedures and budgeting necessary, as well as the mechanics of what might be involved. It concludes by noting the benefits that flow from such work, particularly in relation to the new measures of research quantum and impact adopted by the Commonwealth.
Coronavirus and the Law
Speakers: Professor Warwick Gullet, Dr Lowell Bautista, Professor Nan Seuffert and Dr Dorothea Anthony
Date: 15 April 2020, 12.30-1.30pm via Zoom
Abstract: Warwick will discuss some of Australia’s obligations under international law regarding foreign cruise ships in Australian waters where there is concern that passengers or crew may be infected with a contagious debilitating virus. Lowell will discuss issues of State responsibility in relation to COVID-19. In particular, he would like to explore whether international law imposes an obligation on China to make reparations for COVID-19-related harms, and whether international law permits a case to be pursued against China for claims in connection with damages associated with the pandemic. Nan will discuss what we know about domestic violence in times of disaster such as pandemics and what we need to know. And Dorothea will discuss the place of collectivist values, as distinct from the values of individual human rights, in dealing with crises such as coronavirus.