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.

Vulnerability, legal need and technology in England and Wales

Vulnerability, legal need and technology in England and Wales

Author(s): Faith Gordon

This paper explores legal need and legal advice in England and Wales during the COVID-19 pandemic. It uses the lens of vulnerability theory to examine the ways in which this crisis exposed pre-existing fragilities between the state and its relationship with the advice sector, and the individuals who experience social welfare problems. The paper commences by exploring Fineman’s vulnerability thesis and its application to those experiencing social welfare-related issues, as well as the vulnerability of the systems operating to give advice. The paper then considers the specific context of the COVID-19 pandemic and the impact on needs, and the ability of the sector to meet these needs. 

Centre:

Research theme: Human Rights Law and Policy, Law and Technology

Pathways to empowerment and justice

Pathways to empowerment and justice: The Invisible Hurdles Stage II Research and Evaluation Final Report

Author(s): Elizabeth Curran

The Invisible Hurdles project is an integrated justice project of four partner organisations the project leader is the Hume Riverina Community Legal Service (HRCLS) a program of Upper Murray Family Care and this research was funded through them by the Victorian Legal Services Board and Commissioners grants program. The other three partners in this multidisciplinary and Health Justice Partnership are : Albury Wodonga Aboriginal Health Service (AWAHS) – this is an Aboriginal Community Controlled organisation; North East Support and Action for Youth (NESAY) is a leading agency supporting young people and their families in North East Victoria, servicing a vast region of seven municipalities; The Wodonga Flexible Learning Centre (WFLC) – this is a campus of the Wodonga Senior Secondary College - an alternative education centre was established in 2014. The project is run in the Hume Riverina region of Victoria and New South Wales focussing on ‘at risk’ young people.

Read on SSRN

Centre: PEARL

Research theme: Human Rights Law and Policy

NSC

Australia as a Space Power: Combining Civil, Defence and Diplomatic Efforts

Author(s):

Australia is asserting itself as a serious space player and needs a strategy to match its positioning. In 2018, the creation of the Australian Space Agency (ASA) gained international attention. The ASA’s mission is to develop the nation’s commercial space industry. The new focus on space in the 2020 Defence Strategic Update (DSU) firmly signalled Australia’s intent to advance its sovereign space capabilities.

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Centre: CIPL

Research theme: Military & Security Law

LSJ

Australian law in the freezer: 60 years of the Antarctic Treaty

Author(s): Donald Rothwell

In June this year, the Antarctic Treaty will celebrate its 60th anniversary. The milestone has prompted questions as to whether a treaty negotiated in 1959 is capable of continuing to provide an appropriate governance framework for Antarctica.

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Centre: CIPL

Research theme: International Law

The Judge, the Judiciary and the Court

The Chief Justice: Under relational and institutional pressure

Author(s): Heather Roberts

This chapter examines the role and responsibilities of a chief justice. Using the judicial legitimacy values propounded by Richard Devlin and Adam Dodek, we argue that a ‘successful’ chief justice will promote and protect these values as they negotiate and manage the many relational dimensions of the role with other judges, with the executive, the Parliament, the profession, the academy, the media, and the wider public. Our study highlights interpretative disputes, including as to whether an individual chief justice has responded to genuine, as opposed to improperly perceived, threats to judicial values and about how a chief justice might best navigate between the values, particularly as new values, such as representativeness and efficiency, can appear in opposition to more traditional values. Such questions are symptomatic of ongoing disagreement about the fragility of judicial values, particularly independence, as well as the subjective nature of any attempt to evaluate judicial performance. We argue that there is a need for a more developed normative framework to better understand – and critique – the individual choices and actions of chief justices.

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Centre: CIPL

Research theme: Constitutional Law and Theory

A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats (Advance)

A Common Law Tort of Interference with Privacy for Australia: Reaffirming ABC v Lenah Game Meats (Advance)

Author(s): Jelena Gligorijevic

When the High Court decided Australian Broadcasting Corporation v Lenah Meats Pty Ltd (‘Lenah’) in 2001, it left the door open for a common law tort of interference with privacy. However, privacy claims brought since Lenah have seen courts interpret that judgment restrictively, some holding that tortious remedies are unavailable. The importance of the High Court’s decision for the development of privacy protection through tort law should, therefore, be reaffirmed. In addition to the confirmation in Lenah that a tort of interference with privacy is recognisable in Australian common law, there are good reasons why the courts should now recognise this tort. There is a sufficiently strong normative demand that the common law intervene to protect individual privacy, and tort law is the most appropriate mechanism. When courts are presented with privacy cases reflecting that normative demand and fitting within tort law’s remedial capacity, they should recognise and apply a tort of interference with privacy.

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Centre: CIPL

Research theme: Private Law

 Alternative Law Journal

Indigenous corporations: Lessons from Māori business forms

Author(s): Akshaya Kamalnath

The economic and political empowerment of Indigenous people are linked although the issue of economic empowerment is often overlooked. This Brief analyses the corporate governance model and business structures used by Māori in New Zealand along with some developments in Canadian Indigenous businesses. Based on this, the Brief makes suggestions for proving the regulatory support and options available for Indigenous businesses in Australia.

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Centre: CIPL

Research theme: Indigenous Peoples and the Law

Law, Technology and Humans

Children’s Privacy in Lockdown: Intersections between Privacy, Participation and Protection Rights in a Pandemic

Author(s): Faith Gordon, Damian Clifford

Children and young people throughout the world have felt the effects of Coronavirus Disease 2019 and the decisions made in response to the public health crisis, acutely. Questions have been raised about adequately protecting children’s privacy, as schooling, play and socialising went almost exclusively online. However, due to the historical lack of children’s rights being embedded throughout decision-making processes (including important participation rights), the effects of the increased surveillance as a result of the pandemic have not been thoroughly considered. This article pursues three objectives. First, it seeks to develop the literature on the enabling aspects of privacy for children in relation to education and play. Second, it seeks to expand the discussion on the exploitative risks endemic in not protecting children’s privacy, including not only violent harms, but commercial exploitation. Third, it suggests some policy responses that will more effectively embed a children’s rights framework beyond the ‘parental control’ provisions that dominate child-specific data protection frameworks.

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Centre: CIPL

Research theme: Human Rights Law and Policy

The Journal of Corporate Law Studies

Transnational corporations and modern slavery: Nevsun and beyond

Author(s): Akshaya Kamalnath

A recent decision of the Supreme Court of Canada Nevsun Resources Ltd. v Araya, has brought the issue of transnational corporations’ responsibility for human rights violations to the forefront in Canada. After critically examining the decision, this article aims to propose an effective legislative design for Canada. The article also examines another pertinent decision (this one from the UK), Vedanta Resources plc. v Lungowe in this regard. The proposals for effective legislation in Canada set out in this article will also be relevant for other countries considering the introduction of (or amending) modern slavery laws.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

Technology Law

Technology Law: Australian and International perspectives

Author(s): Gregor Urbas

The regulation of technology is an important and topical area of law, relevant to almost all aspects of society. Technology Law: Australian and International Perspectives presents a thorough exploration of the new legal challenges created by evolving technologies, from the use of facial recognition technology in criminal investigations to the rise and regulation of cryptocurrencies. A well-written and fascinating introduction to technology law in Australia and internationally, Technology Law provides thorough coverage of the theoretical perspectives, legislation, cases and developing issues where technology and the law interact. The text covers data protection and privacy, healthcare technology, criminal justice technology, commercial transactions, cybercrime, social media and intellectual property, and canvasses the future of technology and technology law. Written by leading experts in the field, Technology Law is an excellent resource for law students and legal professionals with an interest in the area.

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Centre: CIPL

Research theme: Law and Technology

Civil Society Coalitions and the Humanitarian Campaigns to Ban Landmines and Cluster Munitions

Civil Society Coalitions and the Humanitarian Campaigns to Ban Landmines and Cluster Munitions

Author(s): Stephanie Koorey

The ending of the Cold War ushered in an era of conventional arms control measures that were previously stymied by great power competition. Further, by the end of the 1990s, a civil society coalition working with middle power states had changed the way international law was made, and had achieved an outright ban not only on a conventional weapon but a weapon in popular use by ground forces and stockpiled by most countries in the world – the antipersonnel landmine. A decade later, a similar ban on cluster munitions was achieved by a related coalition. The popularity of these bans, for ostensibly humanitarian reasons, and in what came to be termed “humanitarian arms control” led to normative changes in State behavior, and changes to customary international law. Additionally, civil society groups found ways to bring other users of these weapons, armed non-state actors, to be accountable under international law. That challenged the long-held notions not only that the State holds the monopoly on the threat or use of force but also who or what can be held accountable to international norms and laws. Further, human rights, particularly the rights of survivors of landmine and cluster munition explosions, became central to the provisions in these treaties.

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Centre: CMSL

Research theme: Military & Security Law

Civil Society Coalitions and the Humanitarian Campaigns to Ban Landmines and Cluster Munitions

Civil Society Coalitions and the Humanitarian Campaigns to Ban Landmines and Cluster Munitions

Author(s): Stephanie Koorey

The ending of the Cold War ushered in an era of conventional arms control measures that were previously stymied by great power competition. Further, by the end of the 1990s, a civil society coalition working with middle power states had changed the way international law was made, and had achieved an outright ban not only on a conventional weapon but a weapon in popular use by ground forces and stockpiled by most countries in the world – the antipersonnel landmine. A decade later, a similar ban on cluster munitions was achieved by a related coalition. The popularity of these bans, for ostensibly humanitarian reasons, and in what came to be termed “humanitarian arms control” led to normative changes in State behavior, and changes to customary international law. Additionally, civil society groups found ways to bring other users of these weapons, armed non-state actors, to be accountable under international law. That challenged the long-held notions not only that the State holds the monopoly on the threat or use of force but also who or what can be held accountable to international norms and laws. Further, human rights, particularly the rights of survivors of landmine and cluster munition explosions, became central to the provisions in these treaties.

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Centre: CMSL

Research theme: Military & Security Law

The Limits of the Natural State Doctrine: Rocks, Islands and Artificial Intervention in a Changing World

The Limits of the Natural State Doctrine: Rocks, Islands and Artificial Intervention in a Changing World

Author(s): Imogen Saunders

The natural state doctrine suggests that under UNCLOS, maritime features must be assessed in their ‘natural state’, before any artificial intervention. While this has been applied in the context of artificial island building, it could also apply to cases of artificial augmentation of features (such as, for example, desalination activities). This article examines the appropriateness of this doctrine in the context of islands, arguing an expansive application of the doctrine is both textually unsupported and practically infeasible in light of changes brought by climate change.

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Centre: CIPL

Research theme: Environmental Law

Excellence, Innovation and Courtesy: Federal Court Procedure and Modernity

Excellence, Innovation and Courtesy: Federal Court Procedure and Modernity

Author(s): Peta Spender

Four decades after its formation, the Federal Court has clearly established itself as a Court of high standing which fosters excellence, innovation and courtesy. The lifespan of the Federal Court has seen the rise of statutory rights and remedies, the conferral of collective redress, as well as the emergence of the modern regulator and the managerial judge. This contribution will focus on significant challenges that have arisen during that time and the adaptation of civil procedure in response. It will use the Federal Court’s ethos of excellence, innovation and courtesy as a framework to illustrate how the Court has responded procedurally to the challenges before it.

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Centre: CIPL

Research theme: Legal Theory

Star Laws: The Role of International Law in Regulating Civil And Military Space Activities

Star Laws: The Role of International Law in Regulating Civil And Military Space Activities

Author(s): Cassandra Steer

There is some notion that outer space is a “Wild West”, or a lawless “final frontier”, but nothing could be further from the truth. The 1967 Outer Space Treaty, and the other core space treaties, apply to all activities in outer space, whether governmental or non-governmental. It is true that these treaties provide general principles, rather than detailed regulation of specific activities. However, together with national laws regulating space activities, these treaties provide a very clear legal framework for both military and civilian space activities. This chapter provides an overview of how this general legal framework ensures that space is well regulated for civilian and military uses of outer space, including how existing branches of international law also apply to activities in space. For military operations, the most important ones are the law on the use of force, the law of armed conflict, human rights law, and environmental law. The imperative is upon States to ensure a stable, secure environment, and to ensure the rule of law prevails, just as in all terrestrial environments.

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Centre: CIPL

Research theme: International Law

The Woomera Manual: Legitimising or Limiting Space Warfare?

The Woomera Manual: Legitimising or Limiting Space Warfare?

Author(s): Cassandra Steer

Military activities in outer space are governed by international law, and the applicability of the law on use of force and law of armed conflict to space is therefore uncontroversial. However, because space has many unique characteristics when compared with other environments, it is not always clear exactly how certain aspects of these bodies of law will apply. For example, at what point does an activity in space amount to a “threat to international peace and security”, or an “armed attack”, both of which would justify some form of forceful response? Where there is ambiguity, there is tension, which can lead to escalation and the risk of space warfare, or of terrestrial warfare in response to a space activity. In an attempt to provide some clarity, the Woomera Manual on the International Law of Military Space Activities is being developed by a group of independent experts from around the world. This chapter tackles the question whether such a Manual has the effect of legitimising space warfare, or rather a restraining effect on the risk of space warfare, and on the impacts if it were to take place.

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Centre: CIPL

Research theme: International Law

Consumer Privacy and Consent: Reform in the Light of Contract and Consumer Protection Law

Consumer Privacy and Consent: Reform in the Light of Contract and Consumer Protection Law

Author(s): Damian Clifford

In its recent Digital Platforms Inquiry — Final Report, the Australian Competition and Consumer Commission (ACCC) made recommendations for the reform of the Privacy Act 1988 (Cth) to provide for better mechanisms for ensuring consumer consent to data collection practices and to the Australian Consumer Law (ACL) to strengthen the protection for consumers against overreaching data collection practices. Such reforms would certainly be timely, given growing concerns about data protection and privacy in the provision of online services to consumers.

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Centre: CCL

Research theme: Law and Technology

Social Enterprise and Equity Crowdfunding – Exploiting Synergies

Social Enterprise and Equity Crowdfunding – Exploiting Synergies

Author(s): Akshaya Kamalnath

Australia introduced equity crowdfunding as a mode of financing in 2017. At the beginning of 2020, there are indications that a legal regime for social enterprises will be considered. The social enterprise movement shares some goals and ethos with the equity crowdfunding movement. This article will outline these shared goals and ethos, and argue that because of these shared goals and ethos, the legal regimes for both should be able to share infrastructure to ensure that both industries are able to develop.

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Centre: CLAH

Research theme: Law and Social Justice

Leading Works in Law and Social Justice

Leading Works in Law and Social Justice

Author(s): Faith Gordon

This book assesses the role of social justice in legal scholarship and its potential future development by focusing upon the ‘leading works’ of the discipline.

The rise of socio-legal studies over recent decades has led to a more interdisciplinary approach to the study of law, which prioritises placing law into its wider social context. Recognising the role that culture, economics and politics play in the development of law is important in order to fully understand the position and impact of law in society. Innovative and written in an engaging way, this collection includes leading and emerging scholars from across the world. Each contributor has been invited to select and analyse a ‘leading work’, a publication which has for them shed light on the way that law and social justice are interlinked and has influenced their own understanding, scholarship, advocacy, and, in some instances, activism. The book also includes a specially written foreword and afterword, which critically reflect upon the contributions of the 'leading works' to consider the role that social justice has played in law and legal education and the likely future path for social justice in legal scholarship.

This book will be an essential resource for all those working in the areas of social justice, socio-legal studies and legal philosophy. It will be of wider interest to the social sciences more generally.

Co-authors: Faith Gordon, Daniel Newman

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Centre: CIPL

Research theme: Human Rights Law and Policy

Vulnerability, Legal Need and Technology in England and Wales

Vulnerability, Legal Need and Technology in England and Wales

Author(s): Faith Gordon

This research explores legal need and legal advice in England and Wales, during the COVID19 pandemic. It uses a theoretical understanding of vulnerability to examine the ways in which this crisis has in practice exposed several pre-existing fragilities in the relationship between the state, the advice sector, and individuals who experience social welfare problems. Our research commences by exploring the concept of vulnerability. In this part, we discuss three things: firstly, the broad range of ways in which vulnerability is experienced by those experiencing social welfare-related issues, secondly, how the idea of vulnerability is often used under austerity-informed policies to identify a limited class of people who are in need ofsocial welfare, and thirdly, the vulnerability of the systemsthemselves which support those individuals through the provision of legal advice. Our research then considers the specific context of the COVID-19 pandemic: it interrogates how social distancing and lockdown measures, in combination with the threat of the virus itself, have compounded the existing fragilities within this relationship.

Drawing on policy documents, reports and three case studies accessed from law centres in England and Wales, it discusses the concept of legal need, and demonstrates how the pandemic has transformed the way that social welfare law needs are experienced, as well as impaired the ability of the sector to meet these needs. These case studies assist us in being able to critically consider the topics of vulnerability, changing needs and the role that technology is playing, and can play, during the pandemic and beyond. Lastly, on the basis of these findings, our research advocates a critical consideration of the sustainability and format of legal advice in addressing legal need in the post-COVID-19 landscape. Drawing on examples of technology being utilised in legal advice sectors in other jurisdictions; this paper considers the future potential of technology for addressing legal need in England and Wales. This is important given that the sector continues to be left vulnerable to funding cuts, and at the same time, society is predicted to experience a continued increase in legal need post-pandemic.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

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