Guest Blog: Pandemic Pressure Points –Economics Governance and Society in Japan

Written by: Joseph Black (CAPLUS law student Intern, 2021)

On 25 August 2021, the Australian Network for Japanese Law (ANJeL), the Australia-Japan Society of New South Wales (AJS), the Australia-Japan Research Centre (AJRC), the Japan Studies Association of Australia (JSAA) and the Centre for Asian and Pacific Law (CAPLUS) delivered a timely seminar entitled “Pandemic Pressure Points: Economics, Governance and Society in Japan”. The webinar was moderated by Dr Rowena Ward, JSAA Treasurer and Senior Lecturer in Japanese studies at the University of Wollongong. Panellists were Professor Yasuko Hassall Kobayashi, Associate Professor at Ritsumeikan University’s College of Global Liberal Arts (and Honorary Associate Professor, ANU College of Asia and the Pacific); ANJeL co-director Professor Luke Nottage from the University of Sydney Law School; and Professor Shiro Armstrong, AJRC director and Associate Professor of economics at the Australian National University (also co-editor of the East Asia Forum blog). Closing remarks were given by Masahiko Kiya, Consul-General of Japan in Sydney, and also Patron of AJS and on ANJeL’s Advisory Board. We had the privilege to explore diverse and topical themes: the impact of the pandemic on Japanese governance and its legal system, the impact of the pandemic on the Japanese economy, how the pandemic has disadvantaged vulnerable groups, and, among other themes, the emergence and potential of digitalisation in Japan.

Dr Ward commenced the substantive part of the seminar by sharing graphs reflecting vaccination and case numbers in Japan. While the number of cases has substantially increased since the middle of June 2021, deaths have recently come down compared to the 7-day average (~7 compared to 32), and have been kept very low by international standards even during earlier waves. Turning to age and sex statistics, males, especially in their 80s, are generally at a higher risk of death than females, and recently, there have been virtually no women in their 30s who have died from COVID. Around 40% of Japanese have received two doses. This number is somewhat higher than in Australia, which has also ramped up vaccinations over the last two months.

Following the statistics, Professor Kobayashi presented and dissected the economic disparity between women and men in the Japanese labour market amid the pandemic and the general social picture. Professor Kobayashi noted that women have generally had less income than men (~251.0 to 338.0); have been subject to precarious, part-time jobs at a higher rate than men; and have experienced more unemployment than men. Women with child/ren had the highest unemployment rate (11.5% compared to 4.2% for men and 9.1% for women) according to May 2020 statistics. As Professor Armstrong later suggested, the actual rate of unemployment figure may be unknown for all women (and men), as the unemployed may not have started looking for employment and are therefore not incorporated in unemployment statistics. Professor Kobayashi noted that there has been an increasing number of telephone consultations for domestic violence (skyrocketing from around 9,000 in January 2020 to over 17,000 between March and April 2020). Furthermore, women have found themselves tasked with ever-more domestic responsibilities, and would like men to participate more in the household than pre-pandemic (21% of tasks to about a quarter).

Professor Armstrong turned to the Japanese economy, and discussed the immediate impacts of the pandemic on the economy. He noted that, while the economy did not shrink this quarter, we may miss the ‘Olympic bounce’ that historically accompanies the Olympics (Tokyo was in a state of emergency and we did not see the type of tourism that follows the Olympics). Nonregular workers, women, young people, the elderly, and the vulnerable in Japanese society have particularly experienced financial hardship. Unlike Australia, Japan has provided limited stimuli, and it has taken considerable time for Japanese to receive checks and masks.

Later, Professor Nottage discussed Japanese law before and amid the pandemic. Japan has been comparatively unusual in pandemic management by not imposing criminal or other legal sanctions on individuals, but instead relying mainly on community norms and self-responsibility to limit movement and COVID-19 spread. One question is whether this provides another example of what Professor John Haley identified as a persistent pattern of “authority without power” in Japanese legal history, meaning authorities don’t have or want to invoke legal powers. An illustration is the practice of informal “administrative guidance” to influence business activity, quite common until the 1980s.

However, Professor Nottage observed that with the COVID-19 pandemic, the government did have constitutional power to extend emergency powers to restrict business activity (which it eventually legislated for, but still in a soft manner compared to Australia and other countries) and even to restrict movement by citizens. The government seems to have decided not to introduce harder lockdown measures because legally they still have to be proportionate, and Japanese citizens and firms generally act responsibly anyway. Another reason is that compensation should be paid if constraints are legislated, and the Japanese government already has high levels of national debt. The response has arguably struck quite a good balance, if we focus on the very low death rates (as the government seems to have done from the outset of the pandemic) combined with benefits from keeping the economy largely open. As one Tokyo-based law professor remarked, a visitor nowadays wouldn’t really know that Japan was going through a global pandemic, except for people wearing masks in crowded situations, somewhat fewer commuters as more work or have university studies from home, and some organisations restricting numbers and hours of operation.

The recent reliance mainly on self- and community responsibility does sit somewhat uneasily with the reforms implemented after an all-of-government report on justice system reform, aimed at making the law more part of everyday life in Japan. Those changes to civil and criminal justice, as well as the expansion of legal education and professionals, were aimed at allowing businesses more flexibility instead of ex ante regulation by public authorities, but improved processes to provide ex post remedies for misbehaviour through more functional courts or alternative dispute resolution systems. But in public health, especially in crises like a pandemic, prevention is usually better than cure. There are downsides, too, in moving socio-economic ordering in an overly legalistic direction.

Professor Nottage also mentioned some areas where the pandemic has had significant impact on Japan’s legal system, drawing on a series of YouTube interviews with various experts in Japanese law, funded through the Japan Foundation Sydney for ANJeL and the JSAA. Japan’s contract and consumer law systems seems to be responding comparatively well, but the pandemic challenges have forced the courts to bring forward plans to digitalise their still mostly paper-based procedures. By contrast, the rapid worldwide shift to remote hearings in international arbitration and mediation creates opportunities for newly established ADR institutions in Japan, but also significant competition.

The webinar also had a variety of questions and answers during the question segment, in the Sydney Law School podcasts recording. For further developments and perspectives, the AJRC is holding a Japan Update 2021 online seminar on 8 September 2021 over 10:00AM-3:00PM AEST.

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Joseph Black is a Juris Doctor student at the University of Sydney and anticipates commencing his Masters of International Law program from February 2022. Joseph is an intern with the CAPLUS and is interested in Japanese Law, Chinese Law, Indonesian Law, East Asian Studies, and other fields.


Australasian Consumer Law Roundtable: 1 December @ USydney

Sydney Law School, with support especially from its Ross Parsons Centre, is pleased to host this year’s Roundtable, in (hopefully!) hybrid format on 1 December 2021, to discuss recent or emerging research and topics in consumer law and policy. In an informal interactive format, for the last fifteen years the Roundtables invite together experts in consumer law mainly from universities across Australia and New Zealand, but sometimes more widely including from Japan and other parts of Asia or even further afield, as well as some consumer regulators or peak NGO representatives. The event is open to other staff and HDR students from USydney, as the host, and any consumer law academics from Australian, NZ or Asian universities are also welcome to seek permission to attend by emailing luke.nottage@sydney.edu.au

Short presentations for discussion at this year’s Roundtable include the following [TBC and re-ordered if needed, closer to 1 December]. Several involved recent or forthcoming publications that may be made available to the wider public already or after the event.

Samuel Becher (VUW)“Dark Contracts”Firms design non-transparent consumer contracts. This article documents the multiple non-transparent contractual mechanisms and practices that firms employ in their consumer contracts. Specifically, it delineates how firms use non-transparent tools in almost every possible contractual juncture: from the contract’s nature, scope, and language to contract performance, dispute resolution, change, and termination. The article first documents this non-transparency. Thereafter, it argues that the sum of these non-transparent components is greater than its parts. The aggregated impact of these non-transparency practices undermines fundamental contract law notions and leaves consumers disinformed and disempowered. While firms have a profit incentive to employ non-transparent contracts, bounded ethicality makes it even more unlikely that firms fully realize the harmful consequences of their contracts. Against this backdrop, the article dubs these highly non-transparent consumer contracts “Dark Contracts.” To better tackle the problem of Dark Contracts, the article proposes introducing transparency-related instruments to the law of consumer contracts to tackle this thorny challenge. It further argues that policymakers should design such concepts to (1) allow better scrutiny over firms’ practices and (2) empower consumers to make better-informed decisions.
Jason Harris (Sydney Law School)“Liability for ACL Breaches Within Corporate Groups and Franchise Systems”An emerging issue in corporate law concerns contribution orders for underpaid workers whereby the court can deem several entities to be within a ‘contribution order group’ and make another company liable for the unpaid entitlements where they have received the benefit of the work. There are broader contribution order regimes (not just for employee entitlements) in NZ, Ireland and Germany. I wonder whether ACL compensation orders had given rise to problems with corporate groups (i.e. assetless shell companies misleading, while the parent company benefits) and whether accessorial liability under ACL s236 is sufficient to address this? In other words, could contribution orders within corporate groups (loosely defined to include franchise systems) benefit consumers and are they worth looking at? I’ve done a bit of work within corporate law looking at veil piercing doctrines, and there is at least 1 TPA case on making a parent co liable for misleading conduct that was argued on veil piercing grounds (which I argued should have been decided on accessorial liability under the TPA instead). 
Jeanne Huang (Sydney Law School)“The Latest Generation of SEZs: Consumer-Oriented Unilateralism in China’s E-commerce Trade” (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3875223)WTO multilateralism is driven by manufacturers. However, in China, Cross-border E-commerce Retail Import (‘CERI’) has spurred a new, consumer-oriented trade unilateralism. CERI prospers within China’s National Cross-Border E-commerce Pilot Cities, which are Special Economic Zones aimed at using unilateral trade liberalization to meet consumers’ growing demands for high-quality foreign products. CERI enhances consumer benefits beyond reducing customer formalities and tax rates and lowering product prices. It re-conceptualizes consumer protection by treating consumers as diverse individuals rather than as a homothetic group. It also empowers consumers by making them ‘importers’ to minimize behind-the-border trade barriers. CERI warrants a rethinking of WTO multilateralism from its initial focus on corporations and capital owners to a revised focus on consumers.
Mary Keyes and Therese Wilson (Griffith U)“Protecting Consumers in International Disputes: Arbitration and Jurisdiction Agreements in Australian Law”The globalisation of markets for consumer goods and services means consumers regularly purchase goods and services from international suppliers.  These agreements typically stipulate that consumers must litigate or arbitrate, if a dispute arises, in the suppliers’ home jurisdiction.  As in other common law jurisdictions, in Australia there are no rules that deal specifically with the effect of arbitration and jurisdiction clauses in consumer contracts; their effect falls to be determined under the general principles that have been developed in the context of commercial transactions.  This article investigates the use of arbitration and jurisdiction agreements involving Australian consumers through an empirical study and evaluates the Australian laws which regulate these agreements.  It demonstrates that, while aspects of the current legal regime may have the capacity to protect consumers, such protections will not necessarily be applied. We review a number of recent cases that demonstrate this problem and suggest that changes to the Australian law are required to more explicitly protect consumers.  
Benjamin Hayward (Monash Business School)“‘Free Your Mind’: Using ‘The Matrix’ to Explain the Interaction Between the Australian Consumer Law and the CISG” For those of a certain age, the conflict between the characters Neo and Agent Smith depicted in ‘The Matrix’ trilogy of movies is well-known and is one of the great rivalries of cinema history.  What is not well-understood in the Australian legal context, including amongst lawyers who would be familiar with this Neo/Smith conflict, is the way in which the Australian Consumer Law interacts with the United Nations Convention on Contracts for the International Sale of Goods (the ‘CISG’). Though the CISG excludes consumer transactions from its scope, the fact that it defines those excluded transactions differently to the way in which the Australian Consumer Law defines consumer supplies provides scope for the CISG to displace the otherwise-mandatory ACL consumer guarantees.  Analogy with ‘The Matrix’ trilogy provides an excellent basis for explaining this interaction, and ensuring that its implications are understood by the legal profession. Young lawyers and law students are today provided more means than ever to acquaint themselves with the CISG, and to understand its place in Australian law.  Anecdotal evidence suggests that a knowledge gap still exists, however, amongst older lawyers – including those who may have grown up watching Neo and Smith’s conflict play out on the silver screen.  This presentation is directed at helping address this knowledge gap, and in turns, seeks to contribute to a better professional understanding of the interaction under analysis.
Victoria Stace (VUW)“Bills, bills, bills. What recent research has revealed about debt collection practices in New Zealand and how the law might respond”Recent research conducted by Victoria University of Wellington has given insight into the experiences of debtors who find themselves facing debt collection. Financial mentors across the country, who see clients daily in unmanageable debt situations,  were asked questions around the conduct of debt collectors, the addition of fees and interest, and use of attachment orders. Particular issue emerged such as the use of intimidation, and use of attachment orders to benefits to collect old debts. This paper discusses the findings of that research and considers how the law can assist to improve standards of behaviour.
Vivien Chen (Monash Business School) with
Lucinda O’Brien, Ian Ramsay and Paul Ali
“An Impending “Avalanche”: Debt Collection and Consumer Harm After COVID-19” Debt collection activity is expected to rise significantly in 2021, as financial hardship becomes more prevalent due to the economic impact of the COVID-19 pandemic. Consumer advocates have warned of an impending “avalanche in debt collection” and have called for better enforcement of laws designed to protect consumers from harassment as well as unfair, misleading and deceptive conduct by debt collectors. Women’s groups have also pointed to a rise in economic abuse, and resulting indebtedness, in the context of a general escalation in family violence during the pandemic. This article examines the legal framework governing the Australian debt collection industry. Drawing on recent case law and a series of focus groups conducted by the authors, it outlines law reform and enforcement measures that would better protect consumers from harmful debt collection practices. These include specific measures to address the financial, social and psychological impacts of family violence and economic abuse
Sagi Peari (UWA)“Consumer Protection Law, Judge Made Law and the Concept of Coherence:Can They Co-Exist?”Consumer protection law intervenes into the traditional doctrines, principles and concepts of the backbone categories of private law: contract and tort. For instance, consumer law challenges the longstanding limited scope of “unconscionability” and the “implied terms” doctrines of contract law. Within the tort law category, consumer law reconceptualises the fundamental elements of the law of negligence. While significant parts of private law categories remain to be subject to the domain of the judge-made law, the consumer laws operate through legislation. The paper tackles the following two interrelated aspects of the interplay between consumer law legislation and the traditional private law categories: (1) the impact of consumer law legislation on the judge made law; (2) the relation of this legislation to a key philosophical concept of private law- “coherence”.
Catherine Niven (QUT)“Proposals to modernise the EU’s General Product Safety Directive: A blueprint for Australian reform”There has been little progress on Australian product safety reforms since the 2019 public consultation on the regulatory impact assessment of introducing a General Safety Provision (GSP). Since this time, the global COVID pandemic has accelerated growth in online shopping, exacerbating the key weakness of the Australian regime: its lack of a GSP. The European Commission (EC) has identified that the growth of e-commerce has decreased the effectiveness of its General Product Safety Directive due to its lack of specificity to online selling and applicability to new e-commerce actors in the product supply chain. In June 2021, the EC commenced public consultation on significant reform proposals aimed at modernising its framework. These include dedicated reforms for online marketplaces with obligations focussed on their place in the product supply chain, specific provisions related to online sales, widening the mandatory incident reporting obligation and using new technologies to conduct product safety recalls. There appears to be significant momentum behind these reforms to be delivered under the New Consumer Agenda of 2020. Could the developments in Europe be an opportunity for Australia to build on the last decade of reform discussion by incorporating key European reform proposals to its product safety regime to elevate the level of consumer protection and create a fairer playing field for Australian businesses?    
Geraint Howells (Galway) [Keynote]“Consumer Product Safety and Online Platform Liability”TBC
Nicola Howell (QUT) and Jeannie Paterson (Melbourne)“Remedies for emotional harm in Australian consumer credit law”Emotional harm is a highly foreseeable outcome of financial stress – whether this arises from borrowing more than is manageable (unsuitable credit), difficulties in repaying credit arising from unforeseen life contingencies (hardship) or not being able to access credit (financial exclusion). Together with co-regulation (AFCA) and self-regulation (eg, Banking Code of Practice), the National Consumer Credit Protection Act now provides an extensive regulatory framework that should help to prevent or reduce financial stress for Australian credit consumers, however, the extent to which this framework can facilitate remedies for emotional harm (and not just financial harm) has not yet been subject to academic consideration. In this paper, we seek to address this gap by examining the current and potential scope for remedies for emotional harm arising from credit law contraventions. We begin by considering the emotional harms which may arise from over indebtedness. We then identify the key statutory provisions specifically aimed at alleviating the effects of unsuitable credit and financial hardship, and the associated remedies for breach. We argue that given the purpose of these regimes it should be open to courts to award remedies aimed at responding to emotional harm. We consider the role of regulators and AFCA in remedial relief responding to emotional harm. We scrutinise the value to consumers of such responses before turning the final part to consider remedies for failure by lenders to engage with the hardship regime and the gaps in this regime in providing real obligations and remedies/redress for breach.
Zofia Bednarz (UNSW)“Using Consumers’ Data to Determine the Target Market for Financial Products: The Difficult Marriage between Financial Law and Data Protection”Digitalisation has had a profound impact on financial services, with increasingly precise data profiling of consumers being one of the drivers of profit for the industry in the digital age. However, data profiling may also result in consumer harm that could range from data breaches to unfair pricing, digital manipulation, discrimination, and exclusion of vulnerable consumers. This can be particularly problematic in financial services context due to the consequences it has on consumers’ access to financial products. In this paper I focus on the requirement to determine the target market for financial products and its interplay with privacy and data protection rules. I argue that financial product governance rules requiring target market determination for products will further incentivise data profiling of consumers by financial services providers. I analyse ways in which financial firms may collect and use consumers’ data for the purpose of constructing the target market and confirming that clients who receive offers of products are within this target market. There is a real risk that financial law and data protection frameworks have failed to strike a balance between (surprisingly) competing interests of consumer protection regarding the provision of appropriate financial products and the use of consumers’ data in digital profiling. This means that the new rules on financial products governance may backfire, resulting in unintended consumer harms.
Kate Tokeley (VUW)“The Power of the ‘Internet of Things’ to Mislead and Manipulate Consumers: A Regulatory Challenge”The “Internet of Things” revolution is on its way, and with it comes an unprecedented risk of unregulated misleading marketing, and a dramatic increase in the power of personalized manipulative marketing. IoT is a term that refers to a growing network of internet-connected physical “smart” objects accumulating in our homes and cities. These include “smart” versions of traditional objects such as refrigerators, thermostats, watches, toys, light bulbs, cars, and Alexa-style digital assistants. The corporations who develop IoT are able to utilize a far greater depth of data than is possible from merely tracking our web browsing in regular online environments. They will be able to constantly collect and share real-time data from inbuilt IoT sensors and trackers such as microphones, cameras, GPS sensors, and temperature sensors. Artificial intelligence (AI) can be used to analyze this raw data in order to gain insights into consumer preferences and behavior, and deliver individualized marketing messages via our IoT devices. The persuasiveness of these marketing messages is likely to be further enhanced if future IoT household assistants are developed to have human-like mannerisms and appearances. This article explains how current laws that prohibit businesses from misleading and deceiving consumers will struggle to operate effectively in an IoT marketing landscape, where questions of who can be held liable, who should be held liable, what communication should be prohibited, and how to ensure enforcement, all become more complicated. It argues that current legal frameworks will need to be re-formulated in order to maintain the ability to prevent deceptive and misleading communication. It also tackles the wider question of whether legal frameworks should be re-formulated so as to add in protections against excessively manipulative marketing. The article points to several potential ways to achieve such re-formulations. Redesigning legal regimes to effectively protect consumers in a new IoT marketing landscape will no doubt be a challenge. The starting point is to confront the fact that there are genuinely difficult problems for which existing regulatory toolkits are ill-equipped to handle.
Kayleen Manwaring (UNSW)“Enforcement-in-a-box: Computational Implementation of Private Rights”The rise in use of smart devices and cyber-physical systems has also seen a rise in attempts at technological implementation of methods of enforcement of private rights (such as contract or copyright) by suppliers of services and software supporting those devices and systems. Many of these devices and systems are hybrids of physical object, software, hardware, data and services, and often are capable of being remotely disabled or modified by the software or service provider. This capacity for remote disablement or modification has the potential to be a potent tool for service and software suppliers to regulate an individual’s use of smart devices and cyber-physical systems. These methods may be used to enforce penalties against alleged breaches of private rights without recourse to a judicial or other dispute resolution process.  This presentation will report on a work-in-progress project intended to examine these issues. Brownsword has warned that ‘full-scale technological management’ by regulators of prohibited conduct (eg a regulator technologically limiting the speed of a car or disabling it) is the ‘thick end of the wedge’ in relation to ‘destabilising’ the rule of law and degrading the importance of human ‘agency and autonomy’.  Pasquale has additionally cautioned that even in circumstances where automated enforcement is efficient, ‘critically important publicly legal values risk being lost or marginalised when dispute settlement is automated.’  This project will examine if this conceptual analysis can be extended to business entities utilising technological management to directly enforce private rights, discussing research questions along the following lines: (1) What harms to individuals, and consequently what detrimental effects on public legal values (such as protection of consumers from abuse of corporate power), might arise from technological implementation in smart devices of private law enforcement methods, such as enforcement of debts, contractual conditions or intellectual property rights? (2) To what extent do existing laws in Australia regulate these harms and detrimental effects? (3) Do legal problems arise in relation to these existing laws? That is, are any of these laws under- or over-inclusive or uncertain? Are there any new harms or detrimental effects arising that are completely unregulated by existing law? (4) How can these harms and detrimental effects be mitigated from a legal (and potentially technological) point of view? 
May Fong Cheong (ACU)“Remedies for Purchasers of Forged Art: The Potential in Section 18 ACL on Misleading Conduct”Art is acquired for its aesthetic value, for the beauty of that art piece as communicated by the artist. However, art is also increasingly acquired for the authorship of the art – buyers desiring not only art, but the work of a recognised “artist”. The authorship value of well-known artists has seen art pieces fetching skyrocketing prices transforming art as objects of aesthetic expression to art as an investment tool. The ‘commodification’ and ‘financialisation’ of art provide opportunities and economic incentives to produce counterfeits and forgeries posing unseen risk to purchasers of art. Both the art enthusiast and the art investor who pays a price for a work of art are entitled to enjoy, and obtain, that which they were led to believe – that the work is authored by the artist who painted that landscape, that object on the framed canvas piece he or she had paid for. They are entitled to the goods as described, to the attribution given of the art piece and to statements warranting the authorship and authenticity of the art. However, art authentication is a complex process: at the intrinsic level to search the truth to determine its cultural and historic value and at a practical level to protect the economic value of art and the functioning of the art market. The purchaser’s challenge to acquire authentic art pieces is further compounded by the intricacies and anomalies in the art industry; one concerning aspect is the questionable practices of auction houses. As a result, art purchasers find themselves in the precarious position of not knowing if the art pieces hanging in their walls are forged. This paper first considers two legal avenues that a disgruntled art purchaser might pursue: (i) implied conditions of goods corresponding to description in the Sale of Goods legislation; and (ii) consumer guarantees of acceptable quality, and of goods as described, under the Consumer Guarantee Law. It then considers how certificates of authenticity of authorship have been decided under the Uniform Commercial Code and under the New York Arts and Cultural Affairs Law. Finally, the paper investigates recourse to art buyers under the misleading conduct provision in section 18 of the Australian Consumer Law and argues that despite some limitations, this avenue offers the best potential for success for purchasers of forged art. 

Guest Blog: COVID-19 in Asia – China, Japan, Indonesia and Malaysia in Focus

Written by: Hao Yang Joshua Mok, student intern at the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS)

On 28 May 2021, the University of Victoria’s Centre for Asia-Pacific Initiatives (CAPI), together with the University of Sydney’s Centre for Asian and Pacific Law (CAPLUS) and the Australian Network for Japanese Law (ANJeL), hosted an online webinar celebrating the publication of Covid-19 in Asia – Law and Policy Context’. A recording of the webinar may be accessed here.

Edited by Prof. Victor V. Ramraj and published by Oxford University Press, the book is a collected volume on Covid-19 law and policy issues in Asia. It draws upon the work of sixty-one authors from seventeen jurisdictions and aims to capture the initial responses of governments in response to the pandemic and highlight likely enduring legal and policy challenges.

The online webinar drew on four chapters of the book, focusing on China, Indonesia, Malaysia, and Japan’s responses to the pandemic.

  • The China chapter was presented by A/Prof. Feng Xu from the University of Victoria and discussed by A/Prof. Jeanne Huang from the University of Sydney.
  • The Indonesia chapter was presented by Dr. Nadirsyah Hosen from Monash University and discussed by Prof. Simon Butt from the University of Sydney.
  • The Malaysia chapter was presented by Dr. Azmil Tayeb from Universiti Sains Malaysia.
  • The Japan chapter was presented by Prof. Shigenori Matsui from the University of British Columbia. Prof. Luke Nottage from the University of Sydney briefly discussed both the Malaysia and Japan chapters.

A/Prof. Xu began her presentation with a reflection of China’s largely successful Covid-19 response. She suggested that we must contextualize China’s experience as an interrelationship between coercion and consent: China’s success in imposing and enforcing strict lockdown and quarantine measures required the acceptance and consent of individuals to those conditions. Turning to the book chapter itself, A/Prof. Xu suggested that China’s emergency response involved the mass mobilization of political, economic, and social resources. While effective, such measures came at a huge cost to individual rights. A/Prof. Xu concluded that the most immediate challenge for China will be the roll-out of its vaccination program.

A/Prof. Huang echoed this theme of consent and emphasized the limited scope of the right to privacy and personal information in China. While this allowed health administrators to access personal data when managing the pandemic, it reflects the tension between coercion and consent. Drawing on her area of focus, A/Prof. Huang provided some brief remarks on civil litigation against China arising out of the pandemic – raising issues of jurisdiction and service – as well as on China’s response to foreign criticism, exemplified by its trade dispute with Australia.

Dr. Hosen suggested that the Jokowi administration’s response to the Covid-19 pandemic had been too little, too late. Despite growing cases in South East Asia in early January, the government did not impose lockdown measures but rather further opened up the country. While the government eventually escalated its measures, the pandemic was already in full swing. Dr. Hosen argued that there were four barriers that contributed to the slow response and ineffectiveness of governmental measures: first, the unhealthy relationship between the Indonesian Medical Association and the Minister of Health Affairs; second, the political rivalry between President Jokowi’s administration and the current governor of Jakarta; third, the incompetence of the Jokowi cabinet; finally, the position of conservative religious groups in rejecting the request not to organize mass prayers.

In Prof. Butt’s discussion, he suggested that issues of governance, politicking, and religion are not new issues for Indonesia. Rather, they have been brought to sharp relief by the pandemic. Moreover, putting aside the government’s shortcomings, the size and geography of Indonesia presents significant difficulty. Prof. Butt concluded that looking forward, the biggest difficulty for Indonesia would be to obtain and administer vaccines in the face of those persistent issues.

Dr. Tayeb discussed issue of improvised pandemic policy and democratic regression in Malaysia. In the lead up to the Covid-19 pandemic, Malaysia was experiencing a volatile political environment which eventually resulted in a new coalition coming into power in late February 2020. Shortly thereafter, Covid-19 emerged, and the government responded by implementing strict lockdown measures. While those measures were initially successful, the country experienced a turning point. Under the backdrop of a continued power struggle, state by-elections were occurring without much restriction. This led to another wave of Covid-19 cases. Dr. Tayeb suggested that throughout the pandemic, the government’s response evinced incoherency. Moreover, the government has been using the pandemic to avoid the convening of parliament, undermining notions of accountability and transparency.

Prof. Matsui suggested that Japan was ill-prepared to deal with the pandemic and its eventual response was slow and insufficient. The difficulty was with Japan’s fragmented and restrictive infectious disease legal infrastructure. While the government eventually revised its statute and declared a state of emergency, only soft measures were imposed, because of initial legal constraints and the effectiveness of social norms. Fortunately, infection rates and death toll remained low in Japan throughout 2020. Now, however, Japan has experienced a resurgence in Covid-19 cases and there is a growing fear that this will worsen with the Tokyo Olympics. The biggest issue ahead for Japan is with its vaccination program, especially given concerns about vaccine hesitancy among the public.

Prof. Nottage went on to compare Malaysia and Japan’s responses during the Covid-19 pandemic. He suggested that in terms of balancing public health, civil liberties, and economic activity, Japan appeared to be quite successful. Prof. Nottage queried the reasons behind vaccine hesitancy this year, especially given the communitarian norms evident last year, as vaccination programs constitute the next complex phase in pandemic management in Australia, across Asia and world-wide.

ANJeL/JSAA “Japanese Law in Context” Podcasts Project – Going Live

The Australian Network for Japanese Law (ANJeL) in collaboration with the Japan Studies Association of Australia (JSAA) and thanks to Mini-Grant funding from the Japan Foundation Sydney awarded in November 2020, has completed 20 podcasts introducing Japanese Law in comparative and socio-economic contexts. The interviews include segments on the current or likely impact of the COVID-19 pandemic across the diverse sub-fields of Japanese law and society. The podcast “playlist” is here on Youtube and a report is here on the design and some key points from the podcasts, written by Melanie Trezise (PhD candidate and research assistant at the University of Sydney Law School, and past ANJeL Executive Coordinator).

The expert interviewees have taught in the Kyoto and Tokyo Seminars in Japanese Law, co-organised by ANJeL and Ritsumeikan University‘s postgraduate Law School since 2005 for Japanese, Australian and other international students, and/or the interviewees have been ANJeL visitors or advisors. Interviewers are ANJeL co-directors Prof Luke Nottage (University of Sydney Law School) and A/Prof Leon Wolff (QUT), along with Micah Burch (Senior Lecturer at Sydney Law School) and Melanie Trezise (who was also primarily responsible for the editing). Others who helped make this possible include Dr Nobumichi Teramura (now Assistant Professor at the University of Brunei) and the terrific tech team from Sydney Law School (Lana Kolta, Andy Netherington and Ross West).

ANJeL and JSAA are very grateful to all who supported this project. We hope that these resources available via their websites (or directly via Youtube) will be useful for the wider public when engaging with the fascinating and ever-changing world of Japanese law. The sub-topics and interviewees are listed below, with video-recordings edited to around 15-20 minutes each. There are also several mostly longer Bonus Features as well as a shorter introduction (by Luke Nottage), such as reflections about the innovative Kyoto and Tokyo Seminar program from some of its key architects (including past ANJeL Co-Director Kent Anderson and Ritsumeikan University Professor Naoya Yamaguchi). Other Seminar program organisers over the years include Professors Makoto Ibusuki (Program Convenor: ASEAN-in-Japan), Tsuneyoshi Tanaka and Chihara Watanabe.

  • Introduction to the Podcast Series – Luke Nottage (USydney)
  • Pop Culture – Leon Wolff (QUT)
  • Comparative and Theoretical Perspectives- Tetsuro Hirano & Chihara Watanabe (Ritsumeikan) with Luke Nottage
  • Mediation – James Claxton (Rikkyo / Waseda U) & Kyoko Ishida (Waseda U)
  • Arbitration – Giorgio Colombo (Nagoya U), Tatsuya Nakamura (Kokushikan U) & Nobumichi Teramura (UBrunei)
  • Civil Procedure – Yoko Tamura (Tsukuba U)
  • Lawyers – Jiri Mesteky (Kitahama Partners) & Yoshihiro Obayashi (Yodoyabashi & Yamagami)
  • Criminal Justice – Kent Anderson (ANU / Advisor to Australia’s Education Minister) & Makoto Ibusuki (Seijo U)
  • Government – Narufumi Kadomatsu (Kobe U)
  • Gender – Kyoko Ishida (Waseda U)
  • Labour – Takashi Araki (U Tokyo)
  • Contracts – Veronica Taylor (ANU/ ANJeL Advisor) & Tomohiro Yoshimasa (Kyoto U)
  • Consumers – Marc Dernauer (Chuo U)
  • Corporate Governance – Souichirou Kozuka (Gakushuin U)
  • Finance – Akihiro Wani (Morrison & Forster)
  • Tax – Justin Dabner (formerly JCU) with Micah Burch (USydney)
  • Bonus: Sports – Matt Nichol (CQU) with Micah Burch
  • Bonus: Gender, Past & Present – Masako Kamiya (Gakushuin U)
  • Bonus: Pandemic & Japanese Law – Compilation
  • Bonus: Kyoto and Tokyo Seminars – Kent Anderson, Leon Wolff & Naoya Yamaguchi (Ritsumeikan) with Luke Nottage

Asian Legal Conversations: COVID-19 (Japan)

ANJeL Program Convenor (Judges-in-Residence) A/Prof Stacey Steele and UMelbourne colleagues have produced or assembled webinar recordings, interview transcripts and other resources comparing how Japanese and society has managed the COVID-19 pandemic, available here.

These resources include:

Quarantine, Masks and Dis/ease: Social Discourses of COVID-19 in Japan and Korea

Sunyoung Oh, Claire Maree, Jun Ohashi and Patrick Murphy
Originally posted on the Melbourne Asia Review, 5 November 2020 [43-minute recorded webinar]

An Analysis of Japanese Responses to COVID-19 from an Administrative Law Perspective

Shusaku Kitajima, 8 October 2020 [article, building on interview with Stacey Steele (26 May, transcript here)]

Responses to COVID-19 and Japanese Criminal Justice

Reegan Grayson-Morison and Stacey Steele, 24 June 2020 [interview transcript]

Judicial Responses to COVID-19: Japanese and Victorian Courts’ Use of Technology

Reegan Grayson-Morison and Stacey Steele, 23 June 2020 [interview transcript]

Embracing Asian Law Centre Communities and Opportunities: Alumni Gathering of Japanese Judicial Visitors

Stacey Steele, 18 June 2020 [short article]

Regionalism Rises in Japan to Confront COVID-19

Dan Rosen, 21 May 2020 [short article]

Japan’s Soft State of Emergency: Social Pressure Instead of Legal Penalty

Akiko Ejima
Co-posted in collaboration with
COVID-DEM, which curates and publishes analysis of COVID-19’s impact on democracy worldwide, 13 May 2020 [short article]

Not a Sporting Chance: COVID-19 Dashes Japan’s Olympic Economic Hopes

Asialink
Originally posted on
Asialink Insights, 11 May 2020 [short article]

Improving the Effectiveness of the Consumer Product Safety System: Australian Law Reform in Asia-Pacific Context

[This is the original draft for a posting that was significantly revised and published under a different title on 29 October 2020 by The Conversation, prompting also interviews/podcasts with ABC National Radio “Life Matters” on 5 November 2020 and “Counterpoint” on 14 December 2020. This work is related to my ongoing ARC-funded joint research project DP170103136 and a JCP article published earlier this year (manuscript on SSRN.com here). A version will be presented and then discussed in the 1 December 2020 webinar for the International Association of Consumer Law (pre-recording available here) and the Consumer Law Roundtable hosted this year by QUT on 3 December. (Last updated: 1 December 2020.)]

The COVID-19 pandemic has heightened our awareness of safety risks, but also the socio-economic costs needed to reduce them. Public health interventions can also collide with human rights and constitutional principles, and undermine state capacity. Australia’s policy-makers and regulators are still facing many difficult choices to manage this new disease.

In consumer law, they and peak NGOs like Choice have also been busy grappling with a range of pandemic-related issues. These range from hand sanitiser quality through to refunds for airfares and other travel services. Nonetheless, hopefully policy-makers can now get back to some unfinished business, as we learn to live with COVID-19 while praying for a vaccine or cure.

In October 2019 the Treasury released its Consultation Regulatory Impact Statement (RIS) entitled “Improving the Effectiveness of the Consumer Product Safety System”. This was part of a suite of reform initiatives agreed after the 2016-7 review of the Australian Consumer Law (ACL), which re-harmonised consumer rights and regulatory powers nationally from 2011.

The review’s Final Report and now the RIS considered adding to the ACL an EU-style “general safety provision”. European countries (such as the UK in 1987, then the EU from 1992), as well as Hong Kong, Macau, Malaysia (1999), Canada (2010) and Singapore (2011, partially), have introduced such a GSP. It was discussed in several earlier government inquiries, notably by the Productivity Commission in 2006 and 2008, but the Commission concluded that the ACL should try some other measures first. A GSP would require manufacturers and importers to ensure that they only supply safe consumer products, otherwise risk public law sanctions from regulators.

Choice found that many Australians wrongly assume we already have this requirement. Yet the ACL currently only allows mandatory safety standards to be set pro-actively for specific types of general consumer products (currently around 40, many involving higher-risk children’s products). These specific standards take a long time to develop, usually only after serious injuries or deaths particularly within Australia. A recent example is renewed efforts to introduce a mandatory standard around button batteries, after a third child died in July and the AFL withdrew thousands of bracelets in October 2020. Regulators can also issue bans (around 20) for products found unsafe, but this is an even more reactive response.

Also only after harm arises, manufacturers can be indirectly incentivised to supply safe products by harmed consumers potentially bringing strict liability compensation claims. But such ACL product liability claims, requiring individuals to prove a “safety defect”, are becoming proportionately fewer. Even large class action law firms prefer focusing resources on more straightforward and large-scale claims by shareholders against listed companies for misleading conduct.

The Treasury’s draft RIS invited public comment on various reform options and three perceived problems with Australia’s consumer product safety system. One problem was misunderstanding about the current ACL regime. A second was its largely reactive nature, impacting on regulatory interventions and supplier behaviour. A third was considerable harm from unsafe consumer products. The ACCC identified 780 deaths and 52000 injuries annually. It also estimated at least a $4.5 billion annual economic cost, assuming around a $200,000 “value of a statistical life year” for premature deaths and disability. There were also costs of $0.5 billion in direct hospital costs for governments, and further costs associated with minor injuries and consequential property loss. (These seem conservative estimates, especially as the US consumer safety regulator recently US$1 trillion costs annually for that country – although the methodology and assumptions for that estimate are not set out in the UNCTAD report.)

My own Submission and a related peer-reviewed article added comparative empirical data in support of a GSP. First, the OECD Global Recalls portal shows that Australia reported higher per capita voluntary recalls over 2017-9 than Korea, the UK, Japan and the USA. Australia reported a rate similar to Canada, at least on the OECD data, but Canada’s legislation has a more expansive duty on suppliers to report product accidents to regulators compared to that added to the ACL. A large proportion of our recalls involve child products, mostly from China.

[Table 1: Comparing Australia’s Recalls (2017-9)]

Secondly, annual recalls have been growing in Australia, as pointed out by Dr Catherine Niven et al (co-researchers for our ARC-funded project comparing child product safety) and various submissions by Choice. The uptick is noticeable from around 2012, tracking burgeoning e-commerce and more importers dealing with more manufacturers abroad. We can anticipate more more consumer product safety problems due to further online sales during the pandemic, and the ACCC issued warnings in April 2020. So far this year, though, annual recalls are down, according to the around 240 by end-October (excluding automobile recalls), compared to around 400 over all of 2019. This drop is likely to be temporary and caused by: (a) pandemic-related recession causing less consumer spending, (b) less time and energy for consumers to complain about unsafe products, (c) businesses struggling with finances and staff so not checking products and conducting or reporting recalls as much, and (d) less regulatory capacity to sweep bricks-and-mortar shops for unsafe products or monitor online platforms (except perhaps the larger ones).

[Figure 1: Australia’s Recalls (1998-2019)]

Perhaps for similar reasons, the Canadian government website shows a drop in recalls reported there this year too: about 130 by end-October compared to 251 over 2019. That website also curiously records fewer recalls annually for “consumer products” (excluding vehicles, foods and healthcare products) than reported on the OECD portal, suggesting Canada’s recall rate per capita may instead be significantly lower than Australia’s. Importantly, it shows a significant drop in annual recalls from 2009 (306) and 2010 (299) to 2011 (258) and 2012 (236), followed by annual recalls averaging around 250 consistently from 2013-2019. The GSP introduced by the Canada Product Safety Act 2010 therefore seems to have had a positive impact, shifting supplier mindsets towards adopting a more pro-active approach including better safety assessments before putting goods onto the market. Singapore also reported a drop in unsafe children’s products found there the year after it introduced a form of GSP through 2011 Regulations.

In further contrast to Australia, the USA reported significantly fewer recalls following the introduction of third-party conformity assessment for toy exporters after problems emerged particularly with China-sourced products around 2008. Dr Niven et al further note that Australian recall notices do not need to include some significant information, eg regarding (even de-identified) injuries. Many Australian recalls of child products also involve breaches of the mandatory standards that have actually been set. (For more details, see her PhD thesis now available here.)

Our regulators could try to sanction local suppliers more for such breaches. But introducing a broader GSP would encourage a “paradigm shift” needed among Australian firms. As discussed in my article, this ACL reform could complemented (but not replaced) by some of the other RIS options, and/or a “product safety substantiation notice” power (mirroring ACL s219, allowing regulators to require suppliers to substantiate claims or misrepresentations that might be misleading).

Introducing a GSP would make Australian suppliers think more carefully about (and document) safety assessments before putting consumer products on the market. This is more efficient and safer than releasing products and then trying to recall them after problems start to be reported, hoping not too many (more) consumers get harmed. It would also encourage Australian firms to “trade up”, like counterparts overseas, to the standards expected in many of our trading partners.

[Luke Nottage receives funding from the Australian Research Council: DP170103136, “Evaluating consumer product regulatory responses to improve child safety”. He provides occasional pro bono advice to Choice regarding consumer law and policy reform, and acknowledges assistance from them in compiling from government recalls data what is reproduced here as Figure 1.]

Comparing Australia’s Response to COVID-19: Against Whom, What, Why and How? Submission to a Senate Inquiry

Written by: Luke Nottage (Sydney Law School) and Tom van Laer (Sydney Business School)

We welcome this opportunity to provide a Submission to the Australian Parliament’s “Senate Committee on COVID-19” inquiry into the Australian government’s response to the outbreak and pandemic.[1] It seems very early to begin making such an assessment. But we o1ffer from our respective disciplines (comparative law and narratology) some preliminary observations as well as lines for future investigation that may assist Parliament and others contributing to this ongoing debate.

  • Our analysis builds partly on our recent joint contribution to USydney blogs (here and forthcoming).[2] One key message from that contribution is that this pandemic and its response have created a new narrative world, rather like a peculiar disaster movie, that prioritises only certain types of heroes and “expertise”. Another key point is that different countries nonetheless have been able to respond well if they have and can mobilise citizens’ trust in communities and (generally well-run) government.[3] A third lesson is that as Australia keeps trying now to move into a phase of socio-economic revitalisation, a new narrative will emerge and could be framed by political and other leaders.
  • In addition, more broadly, basic methodology in comparative law highlights the importance of working out what to compare and why. This is not obvious even if we try to focus on health outcomes. For this parliamentary inquiry, one question is whether to focus on death rates (which are easier to measure and compare, and the ultimate concern) or infection rates (varying widely depending on national testing regimes, but still maybe useful for projecting rates of deaths and serious treatments). On either measure, Australia has been doing extremely well by global standards.
  • If focusing mainly on COVID-19 death rates in assessing a current or future response, however, another aspect is whether and how to count deaths that are indirectly caused by the virus even over the short- to medium-term. These could include deaths from deferred or delayed surgeries or treatments, a greater than usual number of suicides (prompted by extended isolation) and more fatal traffic accidents (found eg in some parts of Japan despite an overall drop, as travel restrictions emptied streets so cars were driven faster).[4] Even greater complications come from trying to assess long-term consequences for the health and related welfare systems, from lockdown measures that result inevitably in severe economic slowdowns, as the stress from long-term un(der)employment is known to be extensive but hard to measure. It is even more complex to compare such effects across countries, as they have very different baselines regarding unemployment and health/welfare systems.
  • Contemporary experts in comparative law are also very attuned to considering what is being compared in terms of law. It is usually not enough to just compare the “black-letter law” rules set out in primary or secondary legislation. (This is well illustrated by Australia’s public health orders restricting movement, which needed to be further “interpreted”, eg as to what constitutes permitted “exercise”, by health ministers and/or police commissioners.[5]) Nor is it even enough to consider case law interpreting legislation (for which anyway there has been hardly any in Australia relating to pandemic responses, unlike countries like France or Germany with constitutionally-protected civil liberties).[6] We also need to compare norms that are “law-like” in terms of origin (from or supported by the government) and impact. Our blog posting mentions Sweden and Japan as countries where social distancing and travel restrictions are being implemented effectively, even among growing death and infection rates respectively, largely without police-enforced criminal or administrative sanctions. A question for this inquiry is therefore what Australia’s more narrowly legalistic response says about how we operate and our values as a society.
  • Japan’s pandemic response, which mostly appeals to communitarian norms of self-restraint rather than having the government and police enforce strict legal rules (as in Australia, albeit with local differences), is reminiscent of John Haley’s argument that Japan even in modern times is governed quite effectively by Authority Without Power (OUP, 1991). Regarding limited “power”, through legal enforcement mechanisms, legal sociologist Takao Tanase’s Community and the Law (co-translated for Elgar, 2010) highlights that Japan remains acutely aware that rigorously extending a “modern” legal system into socio-economic ordering can often be a double-edged sword – even as it has embarked on another wave of justice system reform this century.[7]
  • Relatedly, a final general lesson from comparative law methodology is to be aware of who we are comparing, ie which legal systems. The US is often an outlier, in its law and related socio-economic system,[8] so this Inquiry and later analyses should probably not focus much on that country. Australian jurists (and others) also often compare the UK, as the “mother country” still especially for basic legal principles, but we now borrow more instrumentally and widely, so should keep looking at other (continental) European as well as Asian countries. In particular, we can learn from the comparatively effective yet diverse pandemic responses adopted in East Asia, as mentioned in our joint blog posting added to this Submission.
  • With these methodological principles in mind, one conclusion that emerges from a preliminary comparative analysis of the pandemic is the importance of “proportionality” and “subsidiarity” principles in regulatory responses (including in international law, such as investment treaties[9] – often examined recently in Australian parliamentary inquiries).[10] As in public and private health, it is risky to jump in quickly with stronger measures, especially where there are uncertainties; to minimise side-effects and unexpected consequences, it is usually better to begin with less intensive interventions. Even when we set a short-term public health goal (like COVID-19 infection or especially death rates), and re-set goals as evidence becomes available or circumstances evolve, the response should be proportionate. It should seek to minimise adverse longer-term health effects (eg physical or mental health problems or suicides from sustained social isolation) and other adverse socio-economic impact (including economic contraction impacting on funding for the health and related social welfare systems). To get the balance right often means devolving decision-making authority to lower levels in government, with better information about constraints and impacts: the subsidiarity principle, well-developed say within the EU.
  • Japan seems to have pursued quite a proportionate response, only increasing restraints after infections started to escalate in March, rather like Sweden (but the latter with a much higher death rate). Yet Japan shows less devolution, arguably due to quite a centralised polity, despite the important policy-making contributions by Tokyo and Osaka governors. As a federal system, Australia has displayed more subsidiarity. Prime Minister Morrison and the federal government did usefully innovate around the Constitution by creating a “national cabinet” including premiers or leaders of all states and territories, to help coordinate pandemic responses in light of public health and economic advice. But states and territories across this huge island continent have still differed in timing, scope and implementation of pandemic responses, linked to infection and death rates but also arguably politics (with more centre-left states intervening more, notably Victoria eg not allowing solo fishing as golf as permitted “exercise”). Responses also vary even at local council level (with eg some even in New South Wales closing off city beaches to surfers, even if not necessarily at risk of police closing them down for exceeding state-level restrictions on crowds).
  • By contrast, New Zealand, a much stricter lockdown was implemented nation-wide with no regional variation, aiming at “eradication” rather than “management” of the virus.[11] In hindsight so far, given similar health outcomes so far compared to Australia, the policy seems less proportionate given the necessarily much greater adverse socio-economic impact (even in a more agrarian economy). Perhaps the policy was influenced by the electoral cycle, with Prime Minister Ardern before the pandemic viewed as facing a close election in September this year[12] – leaders don’t want to go to the polls amidst escalating death rates. But the policy could be implemented nation-wide because New Zealand still probably has what former constitutional law professor (and later Prime Minister) Geoffrey Palmer criticised as “the fastest law in the West”.[13] New Zealand still has a unitary state with only one house of parliament and no constitutional bill of rights, and quickly enacted new lockdown legislation,[14] attracting some belated and muted criticism.[15]
  • Another conclusion from a preliminary comparative analysis is that countries and their residents often tend to display a curious nationalism regarding their respective pandemic responses. New Zealanders mostly still seem very happy with their government’s measures. Perhaps this reflects a psychological defence mechanism to deal with a tough lockdown, or an undercurrent of historical deference to authority (“conservative reformism”, as put in an analysis comparing Japan’s “reformist conservatism” in legal education),[16] or a sense of nationhood premised on New Zealand leading the world (eg first to give votes to women, expanding the welfare state over the 20th century, then deregulating dramatically  in the 1980s while going “nuclear-free”), or more risk aversion generally. Another factor is that New Zealanders may feel a bit threatened by bigger resource-rich Australia. On the last point, it would be interesting to see how say smaller countries with closely linked larger neighbours (like Korea and Japan, or Japan and China) perceive comparative responses. It would also be interesting to research how emigres perceive the pandemic responses in their new countries. Perhaps they are very optimistic and supportive because they want to subconsciously justify their immigration choice (Nottage, as a New Zealander who emigrated to Sydney two decades ago, may be an example), or instead very critical (perhaps linked to different disappointments in having moved country).
  • A further point that emerges from comparative analysis is that wider narratives can differ even towards a global crisis with many commonalities. Trying with difficulty to discern Australia’s narrative towards disasters during its summer of bushfires, Tom van Laer was struck that the British government typically deploys a narrative of “we can endure this”. That was developed first doing the Blitz of London during World War II, and revived to deal with IRA and later terrorist attacks. The narrative in Australia seems much less definite and consistent, and perhaps this is because the country (let alone New Zealand) has fortunately had few natural and other disasters. The narrative response by Japan’s leaders nowadays seems quite British, but is worth investigating further in comparison also with Asian countries. We should also track how narratives are evolving as, at least in Australia and some countries, the COVID-19 pandemic shifts from being primarily a health crisis to being an economic crisis. The related narrative tension was highlighted quite early in Australia by Prime Minister Morrison talking about the pandemic being about both “lives and livelihoods”, but we should track how a new story-line develops compared to the countries, as suggested towards the end of our joint blog posting.
  • In addition, drawing more directly on the disciplinary perspective of narratology (how people use stories to persuade each other), Parliament first would benefit from working more systematically and curatorially with academics in developing and supplying official narratives, props, sites and endorsements. Limiting the potential for contradictions, such collaborations increase the likelihood citizens will cope with returning from the pandemic in a similar way. Parliament too may creatively use the experience of the pandemic. For example, mementos can materialize the successful return from the pandemic to the everyday world, a transition of which to be proud.
  • Second, emotionally distress because of the pandemic experience means that there is a vital role for Parliament to play in intentional interventions designed to help citizens cope with distress step by step. It is one thing to assert that citizens can be convinced that distress is cathartic; research findings instead show transforming that distress into benefits turns out to be complex and complicated, and may require a professional approach. To clarify, a reference to theatre may be helpful. In professional productions, trained actors typically are the ones to build narrative worlds. In “method acting” they blend their primary, ordinary lives into the narrative worlds and let the narrative worlds embrace them. Meanwhile they self-consciously realize the adopted narrative world is important but nonetheless different from the “real” world, a realization which eases coping with distress. The ease of getting out of the narrative of our pandemic world therefore constitutes a skill that drama schools teaching method acting could train citizens to do too. Meanwhile, extraordinary experience providers at large can consider offering intentional interventions like consultations, courses, counselling, discussions, therapies or training.
  • Third, this Senate Committee inquiry speaks to impactful issues in experiential industries more broadly. For example, both COVID-19 and virtual reality involve narrative worlds, which may present a costly challenge. These parallels explain the rise in addiction to certain video games and particularly richer virtual reality (e.g., Zoom) to which citizens can return whenever they like, for as long or as short a time as desired. For them, these realities stand as continuous identity reaffirmation and renewal, which can occur in no other way. To stop is to diminish the self. By contrast, the pandemic world will not continue forever to place a mental or physical burden on citizens. They therefore must treat their recent extraordinary experience as a series of happenings that transported their self profoundly but temporarily. They then can process it with awareness and abandon. Resumption of disbelief in the everyday world lies close to the heart of such successful retainment of ordinary life. Citizens ought to analogise the pandemic reality as a temporary narrative world, and become (or be made) aware that their alternate reality can only contribute to transformation of the everyday world if they at least periodically withdraw and reflect. The government has many opportunities and resources to help their citizens in this endeavour.

[1] https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/COVID-19

[2] See https://japaneselaw.sydney.edu.au/2020/05/covid-19-in-asia-and-beyond-we-are-story-characters-living-in-a-new-story-world/ and forthcoming via https://sbi.sydney.edu.au/coronavirus.

[3] As Prof Francis Fukuyama notes in a recent interview, the effectiveness of  COVID-19 responses lie less in regime type, but rather whether citizens trust their leaders, and whether those leaders preside over a competent and effective state: https://supchina.com/2020/05/01/francis-fukuyama-interview-covid-19/

[4] https://mainichi.jp/english/articles/20200516/p2g/00m/0na/010000c

[5] See generally our colleague A/Prof Andrew Edgar, https://auspublaw.org/2020/03/law-making-in-a-crisis-commonwealth-and-nsw-coronavirus-regulations/

[6] Compare eg Dr Holger Hestermeyer, http://constitutionnet.org/news/coronavirus-lockdown-measures-german-constitutional-court; and https://www.lepoint.fr/societe/coronavirus-le-conseil-d-etat-limite-le-pouvoir-des-maires-17-04-2020-2371882_23.php.

[7] Nottage, Luke R., Translating Tanase: Challenging Paradigms of Japanese Law and Society (May 27, 2006). Victoria University of Wellington Law Review, Vol.39, No. 4, pp. 755-778, 2009; Sydney Law School Research Paper No. 07/17. Available at SSRN: https://ssrn.com/abstract=921932

[8] Eg in comparative studies by Nottage on consumer law (especially product liability law), corporate governance, and contract law (many freely available via https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=488525) – all areas moreover that are now hit by the COVID-19 pandemic.

[9] See eg Nottage, Luke R., Rebalancing Investment Treaties and Investor-State Arbitration: Two Approaches (June 14, 2016). Journal of World Investment and Trade, Vol. 17, No. 6, pp. 1015-1040, 2016; Sydney Law School Research Paper No. 16/54. Available at SSRN: https://ssrn.com/abstract=2795396

[10] Nottage, Luke R. and Ubilava, Ana, Costs, Outcomes and Transparency in ISDS Arbitrations: Evidence for an Investment Treaty Parliamentary Inquiry (August 6, 2018). International Arbitration Law Review, Vol. 21, Issue 4, 2018; Sydney Law School Research Paper No. 18/46. Available at SSRN: https://ssrn.com/abstract=3227401 

[11] On the pros and cons of the eradication vs management strategies, from an interdisciplinary academic perspective, see generally the recent Go8 Report at https://go8.edu.au/research/roadmap-to-recovery

[12] Gary Hawke, https://www.eastasiaforum.org/2019/12/20/ardern-stardust-and-a-closer-than-you-would-think-2020-election/

[13] Unbridled Power (1st ed 1979), later edition reviewed here: http://www.nzlii.org/nz/journals/OtaLawRw/2005/10.html)

[14] https://www.stuff.co.nz/national/health/coronavirus/120572466/coronavirus-virus-laws-rushed-through-in-last-parliament-before-lockdown.

[15] https://thespinoff.co.nz/covid-19/28-04-2020/the-legal-basis-for-the-lockdown-may-not-be-as-solid-as-weve-been-led-to-believe/

[16] Nottage, Luke R., Reformist Conservatism and Failures of Imagination in Japanese Legal Education. Asia-Pacific Law & Policy Journal, Vol. 2, pp. 28-65, 2001. Available at SSRN: https://ssrn.com/abstract=837045

Reforming Product Safety Law: Good and Bad News from the Australian Consumer Law Review

Written by: Luke Nottage and Catherine Niven
In 2008, as consumer confidence in Australia took a big hit from the Global Financial Crisis, the Productivity Commission published a report advising the federal Treasurer to lead a belated “re-harmonisation” of consumer protection law. The State and Territory governments agreed to enact substantive provisions mirroring those legislated by the federal Government, thus creating a uniform “Australian Consumer Law” (ACL) in force nation-wide from 2011.
This reform project was mainly “sold” as saving transaction costs for businesses domestically, but also in their dealings with overseas markets that have also been “trading up” to higher standards of consumer protection law (including now ASEAN). As such, for example, all Australian jurisdictions introduced general provisions voiding unfair contract terms along the model adopted by the European Union (EU) in 1993, following the lead of Victoria in 2003. More directly impacting on consumer product safety, the ACL added a novel reporting requirement that suppliers notify the Australian Competition and Consumer Commission (ACCC) about serious product-related accidents, introduced already in 2001 by the EU – albeit in more expansive form.
In addition, the Australian governments also agreed to review the operation of the ACL after five years. In March 2017, with little fanfare, officials in “Consumer Affairs Australia and New Zealand” (CAANZ) released a Final Report including recommendations for ACL reform. They include mixed blessings for enhancing consumer safety law.

Continue reading “Reforming Product Safety Law: Good and Bad News from the Australian Consumer Law Review”

Book Review – Celeste Arrington “Accidental Activists: Victim Movements and Government Accountability in Japan and South Korea” (Cornell University Press, 2016)

This extensively researched and succinctly written book effectively compares the processes and outcomes of several major movements for victims’ redress from governments in Japan and Korea. The focus is on campaigns that developed especially from the 1990s, an era of perceived “judicialization of politics, enabled by democratization in Korea in 1987 and more competitive electoral politics in Japan since 1993” (p. 203), when victims sought redress for poor decisions regarding Hansen’s disease (leprosy, as discussed in ch. 3), blood tainted with Hepatitis C (ch. 4) and abductions by North Korean authorities (ch. 5).
Arrington examines not just the respective victims’ contestations with the state, but also the nature and timing of their interactions with key mediating institutions (ch. 2): the legal profession (to pursue litigation), the media (providing publicity for their causes), and activist groups (for lobbying). In particular, she emphases how too much early engagement with politicians – even “elite allies” – aimed at achieving legislative or bureaucratic intervention, as occurs more in Korea’s more open-textured democratic process, may lead perversely to poorer redress outcomes as the issue becomes more polarised politically.

Continue reading “Book Review – Celeste Arrington “Accidental Activists: Victim Movements and Government Accountability in Japan and South Korea” (Cornell University Press, 2016)”

The Futures of Legal Education in Japan

Articles by Andrew Watson and Stacey Steele in the latest issue (41, 2016) of the Journal of Japanese Law review recent developments in Japanese legal education. They helpfully add to an already surprisingly voluminous literature in Western languages on the topic. This short Comment summarises some background before sketching some innovative ways forward. [A fully-footnoted version is forthcoming in the next issue of the Journal.]

Continue reading “The Futures of Legal Education in Japan”