Australia, Social Justice and Labour Reform in Occupation Japan

This is the sub-title to a fascinating recent book by University of Wollongong CAPSTRAN Research Fellow, Dr Christine de Matos, Imposing Peace and Prosperity (Australian Scholarly Publishing, North Melbourne, 2008, ISBN 1740971612 ix + 427 pp). This eminently readable work is based on her PhD dissertation submitted to the University of Western Sydney in 2003. But those readers (like myself) who do not specialise in history per se may like to fast-forward first to her “Concluding Thoughts” in Chapter 8, “The Context of Australian Policy Towards the Japanese Labour Movement” (pp 328-9):

The United States came to promote a capital-led economic recovery in postwar Japan, while the Chifley government [in Australia, 1945-9] favoured a labour-led one. These essential differences could never be reconciled in terms of Allied labour policy in Japan. A labour-led recovery was essential to the pragmatic Australian aims of security, trade and maintenance of ‘White Australia’. A labour-led recovery would negate the traditional fear held towards a ‘yellow’ nation, once economically and militarily powerful, yet a nation with low living standards and an exploited workforce deemed inimical to living standards and jobs in Australia and Australian regional trade ambitions. For the United States, the Japanese labour movement was too radical, too militant and too political – thus the free rein given to labour was, after 1947, tightly drawn back. For Australia, the Japanese labour movement was not radical enough, or sincere enough, or had developed roots deep enough to play its integral role in Australian policy – a role for which permission and approval was never sought. Japanese workers were, in the end, not trusted by a nation steeped in suspicion, fear and insecurity. The United States enacted a controlled and superficial revolution from above; Australia envisaged the conditions and structures from outside that would, over time, nurture a controlled but penetrating revolution from below. Time was what Australian policy demanded; time was what US policy was not willing to concede.

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Multicultural Japan? Policy, Law and Society

A recent lecture in Sydney by Meiji University Professor Keizo Yamawaki reminded me that every country has its myths or somewhat warped perspectives concerning its own national identity. Australia’s include the idea that it was traditionally English at its core, even though many of its organising principles – egalitarianism, respect for the state, yet a certain larrikanism – were arguably Irish (Patrick O’Farrell, The Irish in Australia, 3rd ed 2000, UNSW Press, Sydney, p 21). Another was that Australia centres on rural communities and ‘the bush’, even in the case of its greatest sporting hero (Brett Hutchins, Don Bradman: Challenging the Myth, 2001, Cambridge UP). A related but debatable motif is that Australia can and should enlighten the world – be “better than the British”. Such thinking underpinned the Chifley government’s push to entrench human rights in Europe and the fledgling United Nations, and to promote a politically radical labour movement in Occupation Japan. Yet the latter policy also involved deeply pragmatic assumptions (Christine de Matos, Imposing Peace and Prosperity, 2008, Australian Scholarly Publishing, North Melbourne). And the former push has failed to result, even now, in an enforceable Bill of Rights throughout Australia itself (Geoffrey Robertson, The Statute of Liberty: How Australians Can Take Back Their Rights, 2009, Vintage, North Sydney).
In Japan, one of the most persistent myths or over-exaggerations has been that of national homogeneity. Yet this is being increasingly undermined by new initiatives to bolster long-term immigration into Japan, building off a significant rise in foreign residents since the 1990s.

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Possibilities and Pitfalls in Laws Affecting Children of Australian and Japanese Parents

Responding partly to the May judgment of the German Constitutional Court upholding a ban on hyphenated triple-barrelled surnames, Lisa Pryor suggests we adopt ‘the Spanish solution’ (‘Repetitive name injury‘, Sydney Morning Herald, 6-7 June, News Review p7). That is, children get two surnames, one from each parent. She also suggests we ditch middle names. But middle names already can be used to good effect to address her concerns, especially in the Australia-Japan context.
On the other hand, there remains a problem with Japan’s Nationality Law, despite its recent amendments, that might catch out children of Australian and Japanese parents.

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Neoclassical and Chicago School Economics Keeps Coming to Japan(ese Law)

A lively and long-overdue debate has emerged recently on the now widely-read East Asia Forum blog. Leading in to their forthcoming 6th edition textbook, economists McTaggart, Findlay and Parkin defended “The state of economics” against charges it failed to anticipate and address well the GFC. Another Australian economist, Steve Keen from UWS, responded with: “Why neoclassical economics is dead“. So Richard Pomfret from Adelaide objects that it is: “Too soon for obituaries: economics is alive and (reasonably) well“.
I can’t resist adding my two yen’s worth. Contrary to Pomfret, unfortunately ‘neoclassical economics’ is not a ‘straw man’ set up by Keen. Nor has it ‘moved on’ – enough, especially these days. To give only one example relevant to Australasia: J Mark Ramseyer’s simplistic application of Chicago School methodology to the economic analysis of virtually all aspects of Japanese law and the economy.

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Australia and Japan as America’s Deputies – in Multilateralism?

Dr Malcolm Cook and Mr Andrew Shearer at the Lowy Institute in Sydney published last month a short analysis entitled Going Global: A New Australia-Japan Agenda for Multilateral Cooperation:
‘To help both governments navigate [a] more complicated and uncertain international environment, the paper offers a agenda for enhanced Australia-Japan multilateral cooperation organised around:
– support for American global leadership, and
– reforming post-war multilateralism.
Three areas of international policy are particularly well suited to closer Australia-Japan cooperation in pursuit of these goals: climate change and energy security; nuclear non-proliferation; and official development assistance.’
I have some doubts about these two foundational principles, especially over the mid- to long-term, given America’s own longstanding ambivalence about multilateralism, and its relative decline particularly since the GFC. In the short term, however, it seems worthwhile to think more deeply and creatively about three of their seven specific recommendations:
‘- Leverage APEC and the East Asia Summit more to act as caucuses in multilateral bodies like the WTO …
– Better coordinate Australian and Japanese aid policies and programs …
– More ambitiously, develop and pursue an Australia-Japan agenda for reform of the multilateral system.’ (p2)

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Responsible Consumer Lending Rules for Australia Too: Submission on the National Consumer Credit Protection Bill

1. I wrote to Australia’s Treasurer recently agreeing we need re-regulation of Australia’s consumer credit markets, along the lines proposed in ‘The National Consumer Credit Reform Package’.
2. I considered some improvements that could be made regarding an External Dispute Resolution scheme. But I begin by supporting a key improvement proposed in the National Consumer Credit Protection Bill: imposing responsible lending rules (focused on ‘suitability’ and repayment capacity), drawing partly on my studies of Japanese law.

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Australia’s Less Lethargic Law Reform? International Arbitration in the Asia-Pacific

[This blog posting follows on from my East Asia Forum posting criticising “Australia’s Lethargic Law Reform” in consumer law recently. I am somewhat more optimistic about initiatives in arbitration law reform, but Australia shares some similar problems with Japan. Japan also took its time to enact new legislation, in 2003, but hasn’t seen significant increases in disputes referred to arbitration.]
On 21 November 2008, the Attorney-General’s Department (AGD) announced a Review of Australia’s International Arbitration Act 1974 (IAA). The aim was to consider whether the Act should be amended to:
* ensure it provides a comprehensive and clear framework governing international arbitration in Australia
* improve the effectiveness and efficiency of the arbitral process while respecting the fundamental consensual basis of arbitration, and
* consider whether to adopt ‘best-practice’ developments in national arbitral law from overseas.
The AGD’s Discussion Paper (DP) expressed the hope that a revised IAA would make Australia a more attractive venue for conducting international commercial arbitration (ICA), especially within the Asia-Pacific region. Unfortunately, Australia has missed that boat, with China, Hong Kong and Singapore the clear leaders now in this part of the world.
For Australia to have any chance at all, it needs a much more ambitious reform than envisaged in the AGD’s DP. Anyway, Australia needs to appreciate the more diffuse and long-term benefits of this type of reform.

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Japanese Law in English through the Internet: Take Two

[English version for: Baum, Nottage et al’s Bibliography chapter in Harald Baum (ed) Handbuch des japanischen Handels- und Wirtschaftsrechts [Handbook of Japanese Commercial and Economic Law] (Carl Heymann, Cologne, forthcoming 2009)]
When Harald Baum and I translated and expanded the original Bibliography chapter in the first edition of this book, and published it as Japanese Business Law in Western Languages: An Annotated Selective Bibliography (Fred B Rothman, 1998), we added a new section introducing the online resources that were already increasingly available for free over the Internet. We also created a webpage – Japanese Law Links, now archived at Sydney Law School – that updated and expanded our introductions to resources made public by various types of organisations.
After another decade, following further exponential growth in the Internet as well as steady increases in interest and writing about Japanese law world-wide, it is now both easier and harder to offer a guide to such online resources. It is harder to be as comprehensive in reviewing them, because of their sheer volume, and there is the added difficulty of selecting the more authoritative and useful resources. However, our task is also easier in that there are now several well-established and reputable websites. They often contain (sometimes annotated) links to other resources, and often original material, in Western languages – especially in English, which is therefore our main focus in this chapter. It is also easier because of higher-quality Internet search engines, such as Google, although no search engine can ever be perfect – as we show next.

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Birth (and Transfiguration?) of an Anti-Whaling Discourse

[Forthcoming (May 2009) in the Asia Pacific Journal of Environmental Law]
Every Australian summer, relations with Japan heat up over whaling. This New Year of the Ox is no exception. On 8 January 2009, a Japanese official reportedly called on Australia to deny port access to the Sea Shepherd Conservation Society’s protest ship, which has begun impeding the lethal research underway again by the Japanese whaling fleet in the Southern Ocean. But there is uncertainty over whether the ship’s activities amount to the alleged ‘sabotage’, and about the implications under national and international law. The editor of The Australian has also argued that Sea Shepherd is ‘On the wrong course’, and that Captain ‘Paul Watson’s zealotry at sea will not stop Japanese whaling’.
On the other hand, as a practical matter, it is hard for Australia to refuse entry to the ship. Sea Shepherd renamed it the Steve Irwin, after the nation’s recently-deceased iconic figure for conservationism – still (in)famous for his own larrikin image. Such symbolism, and the public photo of Paul Watson ‘standing resolute beneath a skull-and-crossbones flag’ highlighted by the editorialist, illustrates the impact of images and wider discourse in framing the contested issue of whaling. And that is the main thesis of USydney’s Dr Charlotte Epstein, in her new book on The Power of Words in International Relations: Birth of an Anti-Whaling Discourse (MIT Press, 2008, Cambridge, Mass. /
London, England (distributed in Australia by Footprint Books), ISBN 978-0-262-55069-7, xii + 333 pages). Her book should be required reading for government officials and others interested in this issue in Australia, Japan and beyond, because the work also helps explain the irony of each country adopting mutually contradictory positions when it comes to whaling. Economic and political interests do partly explain such internally inconsistent positions, but they also seem more likely to prevail when such material interests interact with a broader ‘discourse’, which can persist in different forms in different countries at different times.

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Alcohol deregulation in Japan: Vending machines and FTA-compliant taxes

[Originally posted, with full hyperlinks and various Comments, at http://eastasiaforum.org/author/lukenottage/]
Japan appeared finally to have recovered from its own financial crisis a decade ago, albeit at the cost of much accumulated government debt. But now the country has been hit by the collapse of its export markets and the rapid rise of the yen, following recession in the US and increasingly world-wide. Professor Iwao Nakatani, former Chairman of Sony, urges a radical shift in economic policy in Japan and elsewhere – from policy ‘based on neo-conservative economics and the philosophy of small government to one based on Keynesianism and welfare state ideology’.
Some may remain sceptical that Japan ever really embraced the former philosophy, and its ascendancy was certainly never as pronounced as in the US, the UK or then Australia – where market liberalisation tended to be linked closely to race politics (Mark Davis, The Land of Plenty, MUP 2008). But deregulation of alcohol distribution is one of Japan’s many transformations over the last decade. It is also the flipside of ever-stricter rules on drink driving, although they also reflect a broader trend towards criminalisation of socio-economic deviance (evident eg in product safety or consumer credit re-regulation).
On the other hand, deregulation is most notable in terms of where you can buy alcohol to celebrate this New Year of the Ox, namely vending machines and those ubiquitous convenience stores. It is less notable in what you pay especially for certain beer-substitutes, which mainly reflects differential tax rates. In fact, such rates may well violate WTO law. Yet there is probably not enough financial reward for potential beer exporters to encourage their home governments to sue Japan. So an implication may be for FTA negotiators (even those now from Australia) to seek some offsetting advantage in their overall bilateral deal with Japan. Yet that would further undermine the entire multilateral WTO framework.

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