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.

Oral History, Gender and Law

Author(s): Kim Rubenstein

This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Oral History, Gender and Law

Author(s): Kim Rubenstein

This article considers the relationship between law and gender by sharing information about an oral history project analysing the experience of women lawyers in the public, civic space and women’s experience of lawyering in Australia and of Australian lawyers working in the international context.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Power, Control and Citizenship: The Uluru Statement from the Heart as Active Citizenship

Author(s): Kim Rubenstein

Who governs and how they govern is central to the questions of power, control and citizenship that are at the core of a democratic society. The Uluru Statement from the Heart is the outcome of the 12 First Nations Regional Dialogues culminating in the National Constitutional Convention at Uluru in May 2017. There the First Peoples from across the country formed a consensus position on the form constitutional recognition should take. This article argues that the Uluru Statement from the Heart affirms a commitment to ‘active citizenship’ that draws from a belief in the equal power of the governors and the governed. This understanding of the Uluru Statement from the Heart enables it to be promoted as a document for all Australians, both in the spirit of reconciliation and in its affirmation of a commitment to an equality underpinning Australian citizenship in the 21st century. By examining how citizenship in Australia has evolved as a legal concept and by reflecting on how law is a fundamental tool for providing a ‘meaningful limitation of the lawgiver’s power in favour of the agency of the legal subject’, this article examines the Uluru Statement from the Heart as a commitment to the importance of recognising the nature of the proper relationship between the law giver and those subject to the law — the citizenry. To exercise power within a democratic framework, as opposed to brute force or sheer will over the subject, involves recognising the agency of the citizenry. This idea not only enables reconciliation to be a meaningful and restorative act but one that recalibrates the exercise of power in Australia to benefit all Australians by affirming a commitment to all Australians equal citizenship as active agents.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

Court Records As Archives: The Need for Law Reform to Ensure Access

Author(s): Andrew Henderson, Kim Rubenstein

The Federal Court of Australia performs a fundamentally important role within Australia’s democratic system. It has served as a site for the disputation, negotiation and resolution of issues fundamentally important to Australian society. It does so in the context of a constitutional system affirming the principle of separation of powers and the rule of law, as a means of preserving and enforcing the rights of individuals and navigating the boundaries of the powers of the state. In that context, its records, gathered both through the internal workings of the court and through the cases that come before it, contain a narrative shaping our contemporary understanding of the rights of the individual and the role of the state. Despite the importance of its records in that narrative, the preservation and access to the Federal Court’s records continues to be seen through the lens of traditional understandings of the management of litigation. This paper explores the Federal Court’s role within the broader context of constructing our understanding of the roles and responsibilities of citizenship and illustrates the importance of the Court’s records as an archival resource. In doing so, it highlights the parallels and inconsistencies between traditional archival institutions and the Court in relation to selection, preservation and access to records.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal Education, Legal History and Ethnology, Migration and Movement of Peoples, The Legal Profession

Australian Citizenship Law

Australian Citizenship Law 2e

Author(s): Kim Rubenstein

Citizenship is the pivotal legal status in any nation-state. In Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law sheds light on citizenship law and practice and provides the most up-to-date analysis available of the Australian Citizenship Act 2007 (Cth).

Rubenstein’s Australian Citizenship Law is the much-awaited second edition to her highly acclaimed text. It has been cited in High Court decisions, referred to in national and international academic work and used extensively by practitioners working in citizenship law, migration law, constitutional and administrative law and is an essential resource for migration agents.

Moreover, because of its broader analysis, it is crucially relevant to any discipline associated with citizenship, including, history, politics, education or sociology, and to government officials working in the area of citizenship, especially those working in our embassies and consulates.

Purchase your copy here

Centre: CIPL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, International Law

Legal perspectives on Security Institutions

Legal Perspectives on Security Institutions

Editor(s): Kim Rubenstein

Due to the continuing expansion of the notion of security, various national, regional and international institutions now find themselves addressing contemporary security issues. While institutions may evolve by adjusting themselves to new challenges, they can also fundamentally alter the intricate balance between security and current legal frameworks. This volume explores the tensions that occur when institutions address contemporary security threats, in both public and international law contexts. As part of the Connecting International with Public Law series, it provides important and valuable insights into the legal issues and perspectives which surround the institutional responses to contemporary security challenges. It is essential reading for scholars, practitioners and policy makers seeking to understand the legal significance of security institutions and the implications of their evolution on the rule of law and legitimacy.

Order your copy online

Centre: CIPL, CMSL

Research theme: Human Rights Law and Policy, Military & Security Law

Law and Democracy

Law and Democracy: Contemporary Questions

Editor(s): Kim Rubenstein, Glenn Patmore

Law and Democracy: Contemporary Questions provides a fresh understanding of law’s regulation of Australian democracy. The book enriches public law scholarship, deepening and challenging the current conceptions of law’s regulation of popular participation and legal representation. The book raises and addresses a number of contemporary questions about legal institutions, principles and practices. Examining the regulation of democracy, this book scrutinises the assumptions and scope of constitutional democracy and enhances our understanding of the frontiers of accountability and responsible government. In addition, key issues of law, culture and democracy are revealed in their socio-legal context.The book brings together emerging and established scholars and practitioners with expertise in public law. It will be of interest to those studying law, politics, cultural studies and contemporary history.

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Centre: CIPL

Research theme: Constitutional Law and Theory, Human Rights Law and Policy, Law and Social Justice, Migration and Movement of Peoples

Book cover

Incentives for Global Public Health: Patent law and access to essential medicines

Editor(s): Kim Rubenstein, Thomas Pogge &, Matthew Rimmer

This portrait of the global debate over patent law and access to essential medicines focuses on public health concerns about HIV/AIDS, malaria, tuberculosis, the SARS virus, influenza, and diseases of poverty. The essays explore the diplomatic negotiations and disputes in key international fora, such as the World Trade Organization, the World Health Organization and the World Intellectual Property Organization. Drawing upon international trade law, innovation policy, intellectual property law, health law, human rights and philosophy, the authors seek to canvass policy solutions which encourage and reward worthwhile pharmaceutical innovation while ensuring affordable access to advanced medicines. A number of creative policy options are critically assessed, including the development of a Health Impact Fund, prizes for medical innovation, the use of patent pools, open-source drug development and forms of 'creative capitalism'.

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Centre:

Research theme: Health, Law and Bioethics

Advancing Citizenship: The Legal Armory and its Limits

Author(s): Kim Rubenstein

This Article considers the use of litigation as one mechanism to make citizenship more inclusive. It examines three Australian High Court decisions on citizenship in which the author was also counsel. While addressing the promotion of inclusive approaches to citizenship as a legal status, the Article argues that advocates must consider a range of avenues for advancing their clients' claims. In doing so, the Article also presents a normative critique of citizenship legislation as not paying enough attention to the individual's affiliation with Australia. The cases highlight rules that overlook certain individuals without giving sufficient consideration to their special circumstances, demonstrating that a person's identity is not always reflected in law.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

'From this Time Forward... I Pledge My Loyalty to Australia': Loyalty, Citizenship and Constitutional Law in Australia

Author(s): Kim Rubenstein

A major change in Australian citizenship law occurred on 4 April 2002. On that day, the governor-general of Australia assented to the passage of the Australian Citizenship Amendment Act 2002 (Cth). Before that date, Australian citizens who took up a new citizenship (like Rupert Murdoch taking up US citizenship) automatically lost their Australian citizenship. Central to the former provision, and the 2002 changes, is a view of loyalty and allegiance to the nation-state. This chapter examines how those concepts of loyalty and allegiance are central to discussions on citizenship, and how they are reflected in Australian citizenship law. Moreover, it argues that the change on dual citizenship in Australia has constitutional ramifications; for example, section 44 of the Constitution prevents dual citizens from running for parliament. The chapter concludes with the proposal that the Constitution needs amendment to reflect modern notions of commitment over outdated notions of sole allegiance to one country.

Read on SSRN

Centre: CIPL, CLAH

Research theme: Administrative Law, Constitutional Law and Theory, Human Rights Law and Policy, Law and Gender, Legal History and Ethnology, Migration and Movement of Peoples

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