Publications

This is a searchable catalogue of the College's most recent books and working papers. Other papers and publications can be found on SSRN and the ANU Researchers database.

Corporate Law, Complexity and Cartography

Author(s):

The relationship between corporate law and corporate practice is complex. So too is the relationship between the different types of corporate law rules — from primary and delegated legislation, through listing rules and ASIC orders to corporate constitutions. Corporate lawyers tend to respond to this complexity and diversity by implicit understanding than by conceptual framework. This article offers one way of conceptualising the complexity of corporate law rules and their relationship to corporate practice. Drawing on Boaventura de Sousa Santos’ influential 1987 article ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, the article looks to cartography as an unexpected source of ideas to assist in understanding the shape of modern corporate law rules.

Read on SSRN

Centre: CCL

Research theme: Law and Social Justice, Legal Theory, Private Law, Regulatory Law and Policy

The Multilateral Human Rights System: Systemic Challenge or Healthy Contestation?

Author(s): Jolyon Ford

This essay explores some of the parameters and merits of a putative argument that the announcement of June 19, 2018 that the United States would withdraw from the United Nations Human Rights Council might most properly be understood as but one manifestation of a wider political backlash within the US (and indeed other Western democracies) against the multilateral human rights system epitomized by the Council. There are two prongs to this argument. First, populist-nationalist political sentiment at home simultaneously fuels and is fanned by strident high-profile diplomatic critiques (or even rejections) of global bodies such as the Council. Second, the nature and force of this backlash constitutes a systemic threat to the future of the post-1945 rules-based international order, especially since it comes mostly from the superpower whose values-based rhetoric and leadership has perhaps done most to advance the global human rights agenda in the modern era.

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Centre: CCL, CIPL, LGDI

Research theme: Human Rights Law and Policy, International Law, Law and Technology, Law, Governance and Development, Private Law, Regulatory Law and Policy

Populism, Backlash and the Ongoing Use of the World Trade Organization Dispute Settlement System: State Responses to the Appellate Body Crisis

Author(s): Imogen Saunders

Since 2017, World Trade Organization (‘WTO’) Member States have been unable to reach a consensus on Appellate Body (‘AB’) appointments and reappointments. The United States is spearheading a populist backlash against procedural and substantive aspects of the dispute settlement system of the WTO. As a consequence of this, the AB is now facing an unprecedented crisis. The jewel in the crown of the WTO dispute settlement system will be missing: yet countries are still bringing complaints. This paper considers US actions through the framing of populism and backlash, and assesses responses from other countries.

Read on SSRN

Centre: CIPL

Research theme: International Law, Legal History and Ethnology

The Populist Challenge and the Future of the United Nations Security Council

Author(s): Jeremy Farrall

This article examines the potential impact of the populist challenge to International Law on the United Nations Security Council. The Security Council is often criticized as ineffective, unprincipled, and an anachronistic mechanism that reflects a power balance from the past, rather than the realities of today. The article argues that the rise of populism is likely to further erode the Security Council’s legitimacy and efficacy. At the same time, however, it emphasizes the need for greater nuance in the way that both the phenomenon of populism, as well as the relationship between national and international concerns, are understood and framed. Taking these complexities into account, the Article explores three scenarios that could result from an escalating crisis of Security Council legitimacy. The first involves reform and renewal. The second comprises retreat and realignment. The third encompasses reimagining the international peace and security architecture and creating something new.

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Centre: CIPL

Research theme: International Law

Data Protection and Consumer Protection: The Empowerment of the Citizen Consumer

Author(s): Damian Clifford

This chapter explores the alignment of the EU data protection and consumer protection policy agendas through a discussion of the reference to the Unfair Contract Terms Directive in Recital 42 of the General Data Protection Regulation. This non-binding provision refers to the need to assess the (un)fairness of pre-formulated declarations of data subject consent to personal data processing. Through this lens the introduction of the Directive on Contracts for the Supply of Digital Content and its relationship to the data protection and privacy framework is also explored. The protections provided by both the data protection and privacy and consumer protection frameworks aim to bolster the decision-making capacity of individuals. However, as this chapter outlines, there are potential conflicts when the respective frameworks are assessed together.

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Centre:

Research theme: Law and Technology

Who Has the Power? A Critical Perspective on Space Governance and New Entrants to the Space Sector

Author(s): Cassandra Steer

Space law and space politics are determined by the same big players as terrestrial geopolitics, and therefore in asking how to govern space, we have to take the current realities of international relations and international law into account. How are new entrants interacting with the international space law regime inherited from the Cold War, and what kinds of new governance structures might we need to deal with the increasing number and kinds of participants emerging in the space sector? I take a critical perspective, drawing on feminist legal theory and Third World Perspectives on International Law (TWAIL) to pose further questions: who is exercising power over the development of new legal and governance norms in space and who is excluded from this? I argue that, because we are all so dependent on space for our contemporary existence, 21st century space governance needs to take into account more than the interests of the biggest players.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

Why Outer Space Matters for National and International Security

Author(s): Cassandra Steer

Despite the fact that outer space may only be used for peaceful purposes under the 1967 Outer Space Treaty, most technologically advanced States today have a high military dependence on space. In other words, space is “militarized,” but not yet “weaponized.” At the same time, a space arms race has been underway for some time, and appears to be accelerating in recent years. In 2019, India joined what it proudly dubbed the “elite club” of States with the capability to launch direct ascent anti-satellite weapons, replicating earlier tests by China, Russia and the U.S., all of whom have also demonstrated more covert forms of anti-satellite or “counterspace” technologies. The establishment of the U.S. Space Force at the end of 2019 and the response of allies and adversaries alike is emblematic of the escalatory cycle that appears to be in place. Today nearly every country is dependent in some way on space-enabled capabilities, many of which are supplied not by States but by commercial entities. This report outlines the historical and legal context, and argues for increased cooperation and transparency to improve the stability and security of outer space for national and international security.

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Centre: CIPL, CMSL

Research theme: International Law, Law and Technology, Military & Security Law

Towards Trauma-Informed Legal Practice: A Review

Author(s): Colin James

Vicarious or secondary trauma experience has always been part of legal practice although many do not acknowledge the risk it can have on the mental health, well-being and performance of legal professionals. The listening to, observing and then detailing of traumatic events for the purposes of legal process in some cases may harm lawyers who need to work closely with clients, victims and witnesses. This article reviews the research on trauma in many areas of professional human services that could inform and improve our understanding of legal practice. It examines the discursive history of trauma and recent studies on lawyer well-being, before discussing the controversies about recognising vicarious trauma and the stigma against mental health concerns in the legal profession. The article concludes by reviewing options to assist law firms in considering trauma-informed policy, practices and supervision strategies and to help individual lawyers recognise the value of self-care.

Read on SSRN

Centre:

Research theme:

Maladministration: the Particular Jurisdiction of the Ombudsman

Author(s): Greg Weeks

The office of the ombudsman is much misunderstood. Is it better viewed as part of the executive or the judiciary? Is it a fragile institution, unprotected with security of tenure? Is it a ‘toothless tiger’? The one constant in the face of such inquiries is that ombudsmen don’t seem to care, or at least carry on with great effectiveness as though they don’t. I would argue in any case that such queries are beside the point and that the one thing that must be understood about the ombudsman is that it is an office with a particular purpose.

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Centre: CIPL

Research theme: Administrative Law

The Essendon Football Club Supplements Saga: Exploring Natural Justice for Team Sanctions within Anti-Doping Regulations

Author(s):

10 October 2016, the Essendon Football Club (EFC) performance enhancing drugs regulatory saga concluded with the Swiss Federal Tribunal (SFT) deciding not to ‘entertain’ Essendon’s appeal of the Court of Arbitration of Sport (CAS)’s guilty finding, thus supporting the World Anti-Doping Authority (WADA). The EFC CAS appeal is a unique case as it is the first time a team (34 players from the one team) have been subject to CAS’s jurisdiction for allegations of doping contrary to the World Anti-Doping Code. One significant concern throughout this regulatory sage was that the team-based nature of the infraction denied individual players natural justice. Central to these concerns is the fact that the players were advised by EFC to take part in the program and that its chief architect, sports scientist Stephen Dank, never gave sworn evidence that was tested in cross-examination. This column investigates whether there are important lessons for team-based anti-doping infractions from the EFC saga.

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Research theme:

Nucoal Resources Ltd v NSW: the Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia

Author(s):

The Climate Council recently detailed the adverse health impacts of coal on Australian citizens and their environment. Such reports confirm established evidence that coal mining not only releases atmospheric toxins but destroys prime farming land and rivers. This column examines how the revocation of coal mining leases, after proven corruption by disgraced New South Wales politicians was upheld by the High Court (NuCoal Resources Ltd v New South Wales [2015] HCA 13) was challenged using mechanisms in the Australia-US Free Trade Agreement and potentially the Trans-Pacific Partnership (TPP) Agreement. It is likely that foreign investors in the Australian coal mining and fracking industries will circumvent imprecise exceptions and use investor-state dispute settlement (ISDS) clauses in the TPP to initiate claims for damages before panels of conflicted investment arbitrators, alleging appropriation of their investments as a result of Australian legislation or policy taken against the coal industry on public health grounds. This issue is explored through analysis drawn from an extant investor-state dispute involving the mining industry in North America.

Note: This article was first published by Thomson Reuters in the Journal of Law and Medicine and should be cited as ‘TA Faunce and S Parikh, NuCoal Resources Ltd v New South Wales: The Mining Industry and Potential Health Impacts of Investor State Dispute Settlement in Australia, 2016, 23, JLM, 801’.

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.

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Centre:

Research theme:

Getting Out of Debt: The Road to Recovery for Victim/Survivors of Family Violence

Author(s): Elizabeth Curran

This research and evaluation report undertaken by Dr Liz Curran of the Australian National University (pro bono) looks at research over the two years of the life of a family violence project (with base line data collected in a First Phase Report in November 217) examining a Secondary Consultation (SC) service integrated with Training and Outreach program as well as capacity for strategic advocacy.

The Consumer Action Law Centre project (with part funding from the Victorian Department of Justice & Regulation) aims to overcome barriers for people experiencing family violence identified in previous studies. The research findings (detailed in this report) are that legal assistance services, such as this one of the Consumer Action Law Centre, working with trusted community professionals (to whom people experiencing family violence are likely to turn) if done in a holistic, integrated and seamless, respectful way can enable credit & debt legal issues to be addressed in a timely, creative and effective way. It does this by breaking down barriers that exist to those needing legal help. The report provides some universal insights into the plight and impacts of family violence and ways for effective service delivery without ignoring the challenges for both individuals and a variety of services in providing critical support for victim/survivors of family violence and their family.

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Centre:

Research theme: Health, Law and Bioethics, Human Rights Law and Policy, Indigenous Peoples and the Law, Law and Social Justice, Legal Education, The Legal Profession

Deliberative Constitutional Referendums in Deeply Divided Societies

Author(s): Ron Levy

If referendums are not carefully designed and conducted so as to promote moderation, they may undermine deliberation and hence undermine one of the necessary or principal conditions of their own success. Naturally, there is no suggestion here chat referendums can solve all the ills that deeply divided societies face or that democracy can be reduced to referendums. Yet, if skilfully and sensitively designed, they can play a crucial role, so long, that is, as ordinary people are made to feel that their views count for something in the process.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Deliberative Constitutional Referendums in Deeply Divided Societies

Author(s): Ron Levy

If referendums are not carefully designed and conducted so as to promote moderation, they may undermine deliberation and hence undermine one of the necessary or principal conditions of their own success. Naturally, there is no suggestion here chat referendums can solve all the ills that deeply divided societies face or that democracy can be reduced to referendums. Yet, if skilfully and sensitively designed, they can play a crucial role, so long, that is, as ordinary people are made to feel that their views count for something in the process.

Read on SSRN

Centre: CIPL, DGAL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law, Governance and Development

Judicial Review’s Exclusion by Privative Clauses: Dead or Just Resting?

Author(s): Greg Weeks

The privative clause is dead – or so we are told. Nonetheless, it remains a topic of conversation and judicial attention in both Australia and England, albeit for somewhat different reasons. The Australian approach to privative clauses is substantially coloured by the relevance attached to the concept of jurisdictional error and is therefore distinctly constitutional in its outlook. The English courts have long ago dismissed the role of jurisdictional error and, although they continue to rely on the precedent of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, do so while rejecting the reasoning which informs the use of that case in Australia. This article considers the approaches taken in both jurisdictions and attempts to set out the continuing relevance of the privative clause in Australia.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

Privacy at the Intersection of Public Law and Private Law

Author(s): Jelena Gligorijevic

To demonstrate that any common law system can adequately and legitimately protect informational privacy through a private law action influenced by public law, this paper argues that: tort law can accommodate privacy protection, and the English action is appropriately labelled a ‘tort’; the English tort does not depend upon the Human Rights Act 1998 (HRA), allowing other common law jurisdictions to choose to adopt aspects of that tort; and the public law tool of proportionality can determine privacy tort outcomes in a way that ensures credible legal protection of the fundamental right to privacy in the private sphere, without unjustifiably encroaching upon other rights.

Read on SSRN

Centre: CIPL

Research theme: Private Law

Algorithmic Decision-Making and Legality: Public Law Dimensions

Author(s): Will Bateman

Automating the exercise of statutory powers through algorithmic decision-making carries high levels of legal risk. Fundamental public law doctrines assume that legal powers will be exercised by a particular kind of decision-making agent: one with sufficient cognitive capacities to understand the interpretative complexity of legal instruments and respond to highly dynamic environments. Public law doctrines also assume that clear reasons can be given for the exercise of public power and, by default, attribute legal responsibility for the exercise of statutory powers to a human being bearing political and social responsibility. Those doctrines provide the standards against which the legality of algorithmic decision-making in the public sector must be tested and, until they are met, lawyers should be sceptical of suggestions that statutory powers can be automated.

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Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Law and Technology, Regulatory Law and Policy

Elected Member Influence in the United Nations Security Council

Author(s): Jeremy Farrall

This article reassesses how members of the UN Security Council exercise influence over the Council’s decision-making process, with particular focus on the ten elected members (the ‘E10’). A common understanding of Security Council dynamics accords predominance to the five permanent members (the ‘P5’), suggesting bleak prospects for the Council as a forum that promotes the voices and representation of the 188 non-permanent members. The assumption is that real power rests with the P5, while the E10 are there to make up the numbers. By articulating a richer account of Council dynamics, this article contests the conventional wisdom that P5 centrality crowds out space for the E10 to influence Council decision-making. It also shows that opportunities for influencing Council decision-making go beyond stints of elected membership. It argues that the assumed centrality of the P5 on the Council thus needs to be qualified and re-evaluated.

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Centre: CIPL

Research theme: International Law

Government Liability: Principles and Remedies

Government Liability: Principles and Remedies

Author(s): Greg Weeks, Dr Janina Boughey, Dr Ellen Rock

Given the degree of power wielded by Australian government officials and entities, it is unsurprising that government decisions and conduct frequently impact on individuals. To find the most appropriate way to resolve a particular case, practitioners must be able to work across the traditional legal ‘silos’, drawing on public and private law principles as well as the important, and often under-valued, roles of non-legal accountability mechanisms. This book familiarises readers with some of the complexities underpinning this area and covers public law remedies, private law remedies, and statutory remedies.

Purchase your copy online

Centre: CIPL

Research theme: Administrative Law

Pages

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