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.

National Security and Counterterrorism Laws cover page

National Security and Counterterrorism Laws

Author(s): James Renwick

The relationship between national security and the law is often under strain. The past 20 years have seen many Commonwealth laws passed in quick response to counterterrorism attacks, and more recently, acts of foreign interference and espionage. This article explains the scope of this special edition while reflecting on the challenges facing each branch of government, and law-reform, in this increasingly important area of the law.

Centre: CIPL

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

The Law of Central Bank Reserve Creation journal cover page

The Law of Central Bank Reserve Creation

Author(s): Will Bateman, Jason Allen

This article explores legal and constitutional dimensions of central banks’ powers to create money, ‘central bank reserves’, through monetary policy operations. Despite the prominence of monetary authority since the Financial Crisis, the law supporting the creation of central bank reserves is very obscure, as is the role of law in structuring constitutional authority over money. We de-mystify those important matters in three steps. First, we explain, for a legal audience, the role of central bank reserves in the financial system and broader economy. Secondly, we analyse the legal basis for the creation of central bank reserves in three prominent ‘North Atlantic’ monetary jurisdictions: the US Dollar, Euro and Sterling systems. Thirdly, we show how the legal structure of central banking intermediates the constitutional state's authority over money through parts of the financial system, focusing on high-profile policy proposals, including ‘QE for the people’, and the creation of central bank digital currencies.

Centre: CIPL

Research theme:

The Law of Monetary Finance under Unconventional Monetary Policy cover

The Law of Monetary Finance under Unconventional Monetary Policy

Author(s): Will Bateman

Monetary finance (money creation by central banks to fund public expenditure) is a high-profile part of economic, political and policy debates concerning the legitimacy of central banks in liberal economies and democracies. This article makes a distinctively legal contribution to those debates by analysing the legal frameworks governing monetary finance in three prominent central banking systems between 2008 and 2020: the Federal Reserve System, the Eurosystem and the Bank of England. It begins by explaining the law governing central bank and national treasury relations in the United States, the EU and the UK. It then examines how that law operated under the unconventional monetary policies adopted by central banks in response to the financial crisis and the COVID-19 pandemic. The article concludes by reflecting on the challenges monetary finance presents to the sui generis position of central banks in the liberal constitutional order.

Centre: CIPL

Research theme: Regulatory Law and Policy

Research Handbook on Unilateral and Extraterritorial Sanctions

Research Handbook on Unilateral and Extraterritorial Sanctions

Author(s): Anton Moiseienko

Providing a unique analytical framework to capture a diverse, fragmented and highly evolving practice, the Research Handbook on Unilateral and Extraterritorial Sanctions is the key original reference work covering how sanctions have indisputably become central instruments of foreign policy.

Dr Anton Moiseienko authored Chapter 23, 'Due process and unilateral targeted sanctions'.

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Centre: CIPL

Research theme: Human Rights Law and Policy, International Law

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

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

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

Commercial and Military Uses of Space

The Province of all Humankind: A Feminist Analysis of Space Law

Author(s): Cassandra Steer

This edited book brings together a diverse range of chapters on space related topics. The authors included in this book are drawn from Australia and overseas, from academia, government, industry, civil society and the military. This book contains chapters that cover topics such as law, science, archaeology, defence, policy, and more, all with a focus on space. This edited collection is a timely international and interdisciplinary book, which addresses some of the contemporary issues facing activities in space and those attempting to understand, use and regulate the space domain. This edited book seeks to normalise the role of women as experts in the space sector, by not calling attention to the fact that all the authors are women – they are all experts in their respective fields who just happen to be women.  Bringing together these contributions in this book in turn promotes the inclusion of diversity in the space sector.  This edited collection is an opportunity to influence the development of the space industry – in terms of gender diversity, and diversity of disciplines and thinking – while it is in its formative stage, rather than trying to redress imbalances once they are entrenched in the industry.

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Centre: CIPL

Research theme: International Law

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

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

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