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.

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.

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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

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

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.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law

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.

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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.

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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.

Read on SSRN

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.

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Centre: CIPL

Research theme: Administrative Law

Law, Love and Freedom

Law, Love and Freedom: From the Sacred to the Secular

Author(s): Joshua Neoh

How does one lead a life of law, love, and freedom? This inquiry has very deep roots in the Judeo-Christian tradition. Indeed, the divergent answers to this inquiry mark the transition from Judeo to Christian. This book returns to those roots to trace the twists and turns that these ideas have taken as they move from the sacred to the secular. It relates our most important mode of social organization, law, to two of our most cherished values, love and freedom. In this book, Joshua Neoh sketches the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism). Law, Love, and Freedom brings together a diverse cast of characters, including Paul and Luther, Augustine and Aquinas, monks and Gnostics, and constitutionalists and anarchists. This book is valuable to any lawyers, philosophers, theologians and historians, who are interested in law as a humanistic discipline.

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Centre: CIPL, CLAH

Research theme: Law and Religion, Legal Theory

New Directions in Article 1D Jurisprudence: Greater Barriers for Palestinian Refugees Seeking the Benefits of the Refugee Convention

Author(s): Kate Ogg

This chapter investigates new issues that have arisen in relation to article 1D of the Convention relating to the Status of Refugees (Refugee Convention), resulting from decisions by the Court of Justice of the European Union (CJEU) and New Zealand Immigration and Protection Tribunal (NZIPT). These judgments break away from earlier article 1D jurisprudence but there has been little analysis of the alternative approaches adopted. In theory, these precedents provide greater opportunities for Palestinian refugees to obtain the benefits of the Refugee Convention but in fact threaten the principle of continuity of international protection for Palestinian refugees. This is because the judgments adopt a skewed and narrow understanding of the meaning of ‘protection or assistance’ in article 1D and impose an evidentiary paradox by necessitating that Palestinian refugees prove that their decision to flee was involuntary. Further, the CJEU’s approach favours those who have heroic or intrepid narratives and this can serve to disadvantage Palestinian women and girls. Consequently, these decisions create additional and often-insurmountable barriers to Palestinian refugees seeking the benefits of the Refugee Convention not supported by article 1D’s ordinary meaning or the Refugee Convention’s object and purpose.

Read on SSRN

Centre: CIPL

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

Destination Australia: Journeys of the Moribund

Author(s): Kate Ogg

Australia sends many of those who come in search of refuge to regional processing centers in Nauru and Manus Island, Papua New Guinea. Most of these asylum seekers and refugees want to continue their journey to Australia but the Australian Government has vowed that none will be given protection in Australian territory. However, there have been recent developments in the Federal Parliament and Federal Court that have paved the way for certain asylum seekers and refugees in Nauru and Manus Island to come to Australia. In this chapter, I investigate these legislative and judicial developments and argue that they indicate that the place of human rights and international law is becoming increasingly peripheral in Australia’s refugee law and policy and instead transfers to Australia have become medicalized. Australia’s parliamentarians and courts have moved to protect asylum seekers’ physical and mental health but not the rights flowing to them as people, children, and refugees. Asylum seekers and refugees must be moribund before they can use legal processes to transfer to Australia and they come as sick people in need of medical care—not as bearers of legal rights. These developments hamper larger efforts to end or fundamentally reform Australia’s offshore processing regime.

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Centre: CIPL

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

The Antarctic Treaty at Sixty Years: Past, Present and Future

Author(s): Donald Rothwell

The Antarctic Treaty, which celebrates its 60th anniversary in 2019, remains as a unique example of an international law instrument that seeks to provide a governance mechanism for a single continent. Both Japan and Australia were original parties to the Antarctic Treaty and have been strong supporters of the Treaty throughout its lifetime. However, in 2019 questions are starting to be raised as to whether a treaty negotiated in 1959 is capable of continuing to provide an appropriate governance framework for Antarctica. These questions relate to the role of the seven Antarctic claimant States, the role of historically prominent non-claimant States such as the United States and the Russian Federation, and the interests of powerful ‘new’ States that are beginning to express a strong interest in polar affairs such as China. This paper assesses whether the Antarctic Treaty is sufficiently robust to address the challenges that confront Antarctic governance in 2019 and into the future. Particular attention will be given to whether it remains possible for Treaty parties to request an Article XII ‘Review Conference’, and also the 1991 Madrid Protocol Article 25 review mechanisms.

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Centre: CIPL, CMSL

Research theme: International Law, Military & Security Law

The Feminist Fandango with the Legal Academy

Author(s): Margaret Thornton

This chapter argues that the fortunes of feminism in the Australian legal academy are closely intertwined with the prevailing political ideology. Social liberalism, with its commitment to egalitarianism, a robust civil society and a modicum of tolerance for the Other coincided with the flowering of second wave feminism. This led to the appointment of feminist academics in law schools and the incorporation of feminist perspectives into their teaching. In contrast, neoliberalism, with its aggressive entrepreneurialism and promotion of the self, encouraged sloughing off a commitment to feminist values. Taking its cue from neoliberalism and reacting against the second wave, postfeminism initially also resulted in a depoliticisation and a turning away from collective action, but signs of a revived feminism caused neoliberalism to move in quickly and colonise it. Mirroring the values of neoliberalism, this incarnation of postfeminism, which one might term ‘neoliberal feminism’, encouraged entrepreneurialism and productivity, particularly on the part of upwardly mobile individual women. It also resonated with the neoliberal law school where students were anxious to secure a position on the corporate track in light of mounting tuition debts and increased competition. More recently, there has been a reaction against neoliberalism which has, once again, brought with it a revived incarnation of feminism and a progressive understanding of the ‘post’.

The fandango in the title carries with it not only the idea of different movements, but also variations in tempo, and even a change of partners. The metaphor is designed to encapsulate the character of the dance between the prevailing political ideology and feminism, and the way that it is reflected in the legal academy. The fandango also refers to the more fluid relationship between feminism and its ‘post’. With postfeminism, we see a constellation of performers, some moving backwards and others forward, often at the same time, which highlights its ambiguity and elusiveness. In adopting a temporal trajectory, this chapter seeks to problematise the ‘post’ in postfeminism, underscoring how it may be simultaneously both reactive and progressive according to the constellation of values that prevail at a particular moment in time.

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Centre: CIPL, CLAH, PEARL

Research theme: Human Rights Law and Policy, Law and Gender, Legal Education, The Legal Profession

The Creation of Australian Administrative Law: The Constitution and Its Judicial Gate-Keepers

Author(s): Greg Weeks

For a long time judicial review in Australia was little more than a carbon copy of its English equivalent. In the period before the various Australian states became part of a unified federal nation, judicial review occurred within the inherent supervisory jurisdiction of the various Supreme Courts of those individual colonies and proceeded in a manner similar to that of English courts exercising inherent supervisory jurisdiction. The Australian Constitution is now the defining feature and dominant force of our judicial review doctrine. The key feature of the Australian Constitution that has enabled the recognition and entrenchment of judicial review of administrative action is the express creation and entrenchment of the courts. The express recognition and protection of a selection of the judicial remedies has proved equally important because the constitutional mention of some of the traditional remedies of judicial review has provided the foundation for the courts to entrench by implication that which necessarily precedes the issue of those remedies. While these and other important elements of the Australian Constitution have enabled the development of constitutionally protected avenues of supervisory review, this same constitutional foundation has also provided the source of judicial review principles that increasingly differ from their early English heritage. Many parallels between English and Australian principles remain and the one we discuss about natural justice suggests that, as happens within so many families, Australian judicial review can unwittingly replicate the mistakes of its English parent.

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Centre: CIPL

Research theme: Administrative Law

Jurisdictional Error As Conceptual Totem

Author(s): Leighton McDonald

Jurisdictional error is pivotal but not, in any substantive sense, ‘central’. It is pivotal because it marks important boundaries (drawn by reference to other ideas) in the law of judicial review of executive action. This pivotal but not central role has enabled jurisdictional error to function as a ‘conceptual totem’, emblematic of a determinedly ‘statutory approach’ to the articulation and elaboration of administrative law norms. After elaborating these claims, the article goes on to doubt the constitutional case for the retention of the statutory approach that, in recent years, has come to characterise the Australian approach to jurisdictional error. Recognition of the totemic function of jurisdictional error, it is concluded, is a helpful first step in better understanding and analysing administrative law norms which bear no obvious relation to statute.

Read on SSRN

Centre: CIPL

Research theme: Administrative Law, Constitutional Law and Theory, Legal Theory

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