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.

Sexual Harassment Losing Sight of Sex Discrimination

Author(s): Margaret Thornton

In this article, the author argues that the separation of sexual harassment from sex discrimination within legal and popular discourses deflects attention from systemic discrimination. The article examines a range of conduct to support the view that the closer to heterosex the harassing conduct is, the more likely it is to be accepted as sexual harassment. This corporealised focus not only individualises the conduct and detracts from the idea of women as rational knowers in authoritative positions, it also legitimises other forms of harassing conduct in the workplace. The unremitting focus on the sexual in sexual harassment therefore serves a convenient political and ideological purpose within a neo liberal climate that privileges employer prerogative over workers’ rights.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The New Racism in Employment Discrimination: Tales from the Global Economy

Author(s): Margaret Thornton

Neoliberal employment strategies, immigration policies, economic globalisation and the events of 9/11 have created new environments for racism in Australia. In this article, the ramifications of the shifting political environment on race discrimination against ethnicised Others in employment since 1990 are examined, with particular regard to the post-9/11 period. Drawing on complaints made to anti-discrimination agencies and decisions of courts and tribunals, it is argued that there has been a contraction in the ambit of operation of the legislation through the application of exemptions and a heightened burden of proof for complainants which has had a chilling effect on the jurisdiction. Drawing on Goldberg’s thesis of the racial state, it is posited that in the contemporary political environment, the state is active in producing and sustaining racism.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Protecting (Human) Rights

Author(s): Margaret Thornton

This paper addresses the discourse of human rights in the Australian context. The resistance to human rights is apparent in the drafting of the Constitution and, subsequently, in attempts to enact a statutory bill of rights. The paper also considers the National Human Rights Consultation Report of 2009, noting how the political swing rightwards could damage the prospects of a federal Human Rights Act.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Women and Discrimination Law

Author(s): Margaret Thornton

This paper presents a critical overview of contemporary issues of concern relating to sex discrimination legislation in Australia, focusing particularly on the workplace and the federal Act. Pregnancy, maternity leave and caring responsibilities continue to be especially problematic because of the individual complaint-based mechanism, the comparability requirement in direct discrimination and the assumption of formal equality underpinning the Act.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

Against the background of the political swing from social liberalism to neoliberalism in Australia, this essay considers the discomfiting relationship between feminism and the legal academy over the last three decades. It briefly traces the trajectory of the liaison, the course of the brief affair, the parting of the ways and the cold shoulder. In considering the reasons for the retreat from feminism, it is suggested that it has been engineered by neoliberalism through the market’s deployment of third wave feminism, particularly the popular manifestation of girlpower. The focus on promotion of the self, consumerism, free choice and sexuality has deflected attention away from collective harms. Girlpower has also facilitated a revival of gendered binarisms on the social script, which does not bode well for the future of women in the legal profession. The proposition is illustrated by reference to the represention of women’s breasts on the cover of a law students’ magazine containing articles on sexed crime.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Age Discrimination in Turbulent Times

Author(s): Margaret Thornton

Concerns about the ramifications of a rapidly aging population have generally focused on the post-retirement period, with limited scholarly attention to the experience of ageism in the workplace. Despite a shift in policy against early retirement, ‘older workers’ – who may be as young as 40 – are disproportionately experiencing age discrimination, often resulting in joblessness. This article argues that in a postmodern environment, where the culture of ‘youthism’ predominates, the workplace is undergoing significant changes. In the new knowledge economy, characterised by technological know how, flexibility and choice, traditional values such as maturity, experience and loyalty have become passé. Drawing on Australian complaints and reported decisions of age discrimination in the workplace in the context of the international literature, the article demonstrates the variety of forms ageism is taking. It argues that age discrimination legislation reflects an outdated modernist paradigm that fails to address the experience of older workers. In addition, as part of the culture of youthism, work is now being gauged by its capacity to create an aesthetic of pleasure.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Book Review: Reflections on Democracy and Deliberation in Australia – Australia The State of Democracy

Author(s): Ron Levy

A few years ago, the convenors of the Australian National University’s Democratic Audit asked scholars of politics and of law to report on democracy in this country. The result is Australia: The State of Democracy. Not an edited collection but an ‘audit’, the book’s three authors have synthesised contributors’ reports into a single volume in order to diagnose the ‘health’ of Australian political life. The result is a revealing fullbody scan of the body politic and the institutions sustaining it.

In this article's review of the book, the focus is on the quality of political deliberation in Australia.

Read on SSRN

Centre: CIPL, CLAH, CMSL, DGAL

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

HLA Hart, Lon Fuller and the Ghosts of Legal Interpretation

Author(s): Desmond Manderson

Henry James’ short novel The Turn of the Screw appeared in 1898. It is a ghost story, uncanny both in content and in form. It relates such uneventful events that the reader is left turning from interpretation to interpretation, trying to determine just what is going on. Yet like the ghosts themselves, wherever we look, there is nothing to see. Until the very last sentence of the book, which hits one like a fist, nothing happens, nothing is proved, and yet a palpable feeling of tension and anxiety builds. It is therefore not fanciful to suggest that the real power of the story lies not in its narrative but in its rhetoric. The book creates a mood of anxiety that infects the reader’s reading. This is what one might call the ‘performative’ dimension of the story. James’ tale constitutes a reader, alert but confused, who thereby experiences the feeling of being part of a ghost story rather than merely reading about one. Sixty years later, HLA Hart and Lon Fuller likewise do not merely describe two different approaches to legal interpretation: in their style, rhetoric and structure they perform these approaches. This essay similarly wishes to connect its argument with its form and for this reason I have chosen to devote considerable space to discussing a work of literature. The Turn of the Screw illuminates certain essential features of the Hart/Fuller debate. Both are tales about law, interpretation, and ghosts. Through James, this essay argues that the debate between Hart and Fuller epitomizes legal interpretation as haunted. Rhetorically, they present two largely incommensurable visions of law. Yet their efforts to exclude the other’s approach fails. But instead of choosing between Hart and Fuller we can gain a richer understanding of legal interpretation if we treat their performance as mutual and interactive. I do not mean that Hart and Fuller can in any way be reconciled through compromise or synthesis. I mean rather that each remains ‘haunted’, and therefore productively unsettled, by the perspective of the other. To be haunted is never to be comfortable with one’s judgment or knowledge, never at peace. This may be ‘a horror’ in a story, but necessary in a legal system.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Judgment in Law and the Humanities

Author(s): Desmond Manderson

The interdisciplinary temperament of ‘law and the humanities’ is both perplexing for law, and intriguing for the humanities. This perplexity and this intrigue come to a head precisely over one of the most important institutional necessities and problems of law: judgment. If a text is not a truth but a debate; if it embodies not one story or meaning but many; if a statute, let us say, or a court case cannot be neatly separated from literature, or rhetoric, or politics – then there is literature, and rhetoric, and politics, in every interpretation and in every decision. One of the central questions that the influence of the humanities on law raises is this: how, and with what legitimacy, can judgment take place if the texts on which judges base their decision do not – even in principle, let alone in practice – yield ‘one right answer.’ Over the past few years, as the question of judgment has ever more urgently weighed upon scholars within the broad church of the humanities, at least two kinds of answer have emerged: one broadly speaking influenced by Derrida’s later work and the other, equally schematically, taking Heidegger as its point of departure. Now these two streams draw very closely on a common intellectual tradition and share many points of similarity. Nevertheless I wish to insist in this essay that the two strands part company on the crucial question of judgment in law. In this chapter I focus on these two divergent paths now open to law and the humanities. The key difference between them (although not everyone will agree) lies in the transcendentalism – I would say the Romanticism – of the latter, and the relativism pragmatism – I would say the humanism – of the former. This chapter argues that we have both social and intellectual reasons to prefer the humanist perspective over its romantic alternative. Drawing on the language of deconstruction, and the experience of literature that lies at its heart, I want to defend an understanding of the purpose and nature of legal judgment which places as its central concern the provisional and multi-vocal experience of human discourse. From this we might develop a theory of judgment that is neither positivist nor Romantic.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Judgment in Law and the Humanities

Author(s): Desmond Manderson

The interdisciplinary temperament of ‘law and the humanities’ is both perplexing for law, and intriguing for the humanities. This perplexity and this intrigue come to a head precisely over one of the most important institutional necessities and problems of law: judgment. If a text is not a truth but a debate; if it embodies not one story or meaning but many; if a statute, let us say, or a court case cannot be neatly separated from literature, or rhetoric, or politics – then there is literature, and rhetoric, and politics, in every interpretation and in every decision. One of the central questions that the influence of the humanities on law raises is this: how, and with what legitimacy, can judgment take place if the texts on which judges base their decision do not – even in principle, let alone in practice – yield ‘one right answer.’ Over the past few years, as the question of judgment has ever more urgently weighed upon scholars within the broad church of the humanities, at least two kinds of answer have emerged: one broadly speaking influenced by Derrida’s later work and the other, equally schematically, taking Heidegger as its point of departure. Now these two streams draw very closely on a common intellectual tradition and share many points of similarity. Nevertheless I wish to insist in this essay that the two strands part company on the crucial question of judgment in law. In this chapter I focus on these two divergent paths now open to law and the humanities. The key difference between them (although not everyone will agree) lies in the transcendentalism – I would say the Romanticism – of the latter, and the relativism pragmatism – I would say the humanism – of the former. This chapter argues that we have both social and intellectual reasons to prefer the humanist perspective over its romantic alternative. Drawing on the language of deconstruction, and the experience of literature that lies at its heart, I want to defend an understanding of the purpose and nature of legal judgment which places as its central concern the provisional and multi-vocal experience of human discourse. From this we might develop a theory of judgment that is neither positivist nor Romantic.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

Women and Discrimination Law

Author(s): Margaret Thornton

This paper presents a critical overview of contemporary issues of concern relating to sex discrimination legislation in Australia, focusing particularly on the workplace and the federal Act. Pregnancy, maternity leave and caring responsibilities continue to be especially problematic because of the individual complaint-based mechanism, the comparability requirement in direct discrimination and the assumption of formal equality underpinning the Act.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

‘Post-Feminism’ in the Legal Academy?

Author(s): Margaret Thornton

Against the background of the political swing from social liberalism to neoliberalism in Australia, this essay considers the discomfiting relationship between feminism and the legal academy over the last three decades. It briefly traces the trajectory of the liaison, the course of the brief affair, the parting of the ways and the cold shoulder. In considering the reasons for the retreat from feminism, it is suggested that it has been engineered by neoliberalism through the market’s deployment of third wave feminism, particularly the popular manifestation of girlpower. The focus on promotion of the self, consumerism, free choice and sexuality has deflected attention away from collective harms. Girlpower has also facilitated a revival of gendered binarisms on the social script, which does not bode well for the future of women in the legal profession. The proposition is illustrated by reference to the represention of women’s breasts on the cover of a law students’ magazine containing articles on sexed crime.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The New Racism in Employment Discrimination: Tales from the Global Economy

Author(s): Margaret Thornton

Neoliberal employment strategies, immigration policies, economic globalisation and the events of 9/11 have created new environments for racism in Australia. In this article, the ramifications of the shifting political environment on race discrimination against ethnicised Others in employment since 1990 are examined, with particular regard to the post-9/11 period. Drawing on complaints made to anti-discrimination agencies and decisions of courts and tribunals, it is argued that there has been a contraction in the ambit of operation of the legislation through the application of exemptions and a heightened burden of proof for complainants which has had a chilling effect on the jurisdiction. Drawing on Goldberg’s thesis of the racial state, it is posited that in the contemporary political environment, the state is active in producing and sustaining racism.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

The Idea of the University and the Contemporary Legal Academy

Author(s): Margaret Thornton

In light of the contemporary moves to transform the Australian university by subjecting it to the values of the market, the traditional idea of the university is in jeopardy. Freedom to teach, the unity of teaching and research, and academic selfgovernance are key factors associated with this idea. With its primarily professional and vocational focus, law has tended to be somewhat more ambivalent than the humanities about the freedoms associated with teaching and the pursuit of knowledge. Nevertheless, a liberal legal education is an ideal to which law schools have aspired over the last two or three decades. This article argues that, after a brief flirtation with a more humanistic legal education, the market is causing a swing back to a technocratic and doctrinal approach. The article draws on key proponents of the 'idea of the university', namely, Newman, Humboldt and Jaspers to consider what light these theorists might shed on the dilemma posed by the market imperative. It is suggested that a disregard for the presuppositions of the market could be disastrous for the future of the university law school.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

Book Review: Watching Brief: Reflections on Human Rights, Law and Justice (Julian Burnside)

Author(s): Matthew Zagor

Julian Burnside’s collection of essays provides an insight into the mind of one of the Howard era’s most vocal public critics. Located within traditional liberal values and orthodox human rights principles, Burnside’s stories of human suffering and his Kantian appeals to human dignity are aimed at awakening our ‘imagination to understand the realities’ behind the political and legal spin of the times. Although sometimes loose with his legal language, his vision of a ‘just society’, his concerns for democracy, and his fury at the disempowerment and silencing of ‘voiceless minorities’ (notably asylum-seekers, indigenous peoples, and ‘terror’ suspects) remain persuasive and relevant to the new administrations in both Australia and the US.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

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

Judicial Rhetoric and Constitutional Identity: Comparative Approaches to Aliens' Rights in the United Kingdom and Australia

Author(s): Matthew Zagor

A comparison between the judicial reasoning adopted by the House of Lords in Belmarsh and Torture Evidence cases, and the High Court of Australia's administrative detention cases (especially Al-Kateb) reveals stark differences in the approach to common law rights, judicial reasoning, and constitutional rhetoric. Using the language of historically-based identity-informing constitutional values, their Lordships' speeches can be seen as exercises in public and political persuasion, made within the idiom of constitutional veneration which is enjoying a renaissance in the UK. This emerging judicial rhetoric combines an appeal to a mythologised constitutional past with an emphasis on the quintessentially 'British' nature of the rights at stake to consolidate both the constitutional status of the 'principle of legality' and an inclusive notion of 'equality'. By contrast, the High Court's majority decisions are virtually devoid of the language of values, and are silent on the nature or status of the rights which Parliament was impliedly abrogating. The decisions are instead shrouded in the equally powerful rhetoric of strict legalism. Behind this purportedly valueless methodology, however, their Honours' decisions reveal attitudes towards aliens as 'illegal,' 'unlawful' and 'unwanted' rather than rights-bearers, and a judicial deference to Parliament to 'protect' an undefined Australian community. The arrival of French CJ to the helm of the High Court might see a reinvigoration of common law rights via the principle of legality.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

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

Access to Essential Medicines: Public Health and International Law

Author(s): Kim Rubenstein

Historically, there have been intense conflicts over the ownership and exploitation of pharmaceutical drugs and diagnostic tests dealing with infectious diseases.

Throughout the 1980’s, there was much scientific, legal, and ethical debate about which scientific group should be credited with the discovery of the human immunodeficiency virus, and the invention of the blood test devised to detect antibodies to the virus. In May 1983, Luc Montagnier, Françoise Barré-Sinoussi, and other French scientists from the Pasteur Institute in Paris, published a paper in Science, detailing the discovery of a virus called lymphadenopathy (LAV). A scientific rival, Robert Gallo of the National Cancer Institute, identified the AIDS virus and published his findings in the May 1984 issue of Science. In May 1985, the United States Patent and Trademark Office awarded the American patent for the AIDS blood test to Gallo and the Department of Health and Human Services. In December 1985, the Institut Pasteur sued the Department of Health and Human Services, contending that the French were the first to identify the AIDS virus and to invent the antibody test, and that the American test was dependent upon the French research.

In March 1987, an agreement was brokered by President Ronald Reagan and French Prime Minister Jacques Chirac, which resulted in the Department of Health and Human Services and the Institut Pasteur sharing the patent rights to the blood test for AIDS. In 1992, the Federal Office of Research Integrity found that Gallo had committed scientific misconduct, by falsely reporting facts in his 1984 scientific paper. A subsequent investigation by the National Institutes of Health, the United States Congress, and the US attorney-general cleared Gallo of any wrongdoing.

In 1994, the United States government and French government renegotiated their agreement regarding the AIDS blood test patent, in order to make the distribution of royalties more equitable...

The dispute between Luc Montagnier and Robert Gallo was not an isolated case of scientific rivalry and patent races. It foreshadowed further patent conflicts over research in respect of HIV/AIDS. Michael Kirby, former Justice of the High Court of Australia diagnosed a clash between two distinct schools of philosophy - ‘scientists of the old school... working by serendipity with free sharing of knowledge and research’, and ‘those of the new school who saw the hope of progress as lying in huge investments in scientific experimentation.’ Indeed, the patent race between Robert Gallo and Luc Montagnier has been a precursor to broader trade disputes over access to essential medicines in the 1990s and 2000s. The dispute between Robert Gallo and Luc Montagnier captures in microcosm a number of themes of this book: the fierce competition for intellectual property rights; the clash between sovereign states over access to medicines; the pressing need to defend human rights, particularly the right to health; and the need for new incentives for research and development to combat infectious diseases as both an international and domestic issue.

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

England and the Rediscovery of Constitutional Faith

Author(s): Matthew Zagor

England is currently experiencing a widely recognised constitutional renaissance, with traditional English ‘liberties’ at its core: historic rights and liberty-affirming documents of the past are cited by counsel and judge alike, the Prime Minister waxes lyrical about constitutional values which define the British nation, scholars call for the revival of a purported rights-centric common law constitution, and a new breed of media-star historians are rediscovering English liberties in political institutions and re-imagined constitutional moments. Even the mythology of Magna Carta is resurfacing in the popular imagination, the date of its signing selected by public poll as ‘the best date to celebrate Britishness’.

The rhetoric contrasts with the dominant popular trope for much of the twentieth century, which portrayed the English constitution as essentially clever politics. Today’s constitutional veneration, however, has a long and complex history. This paper charts the variety of constitutional veneration that arose in the post-reformation period, as well as its decline, and contemporary revival. Starting with an overview of the seventeenth century, it charts the emergence of a constitutional language arising out of the rich theological and philosophical tradition of the age, and the persuasive use by the principal judicial figures of the day of new forms of historiography, traditional natural law philosophy, and emerging ethnic nationalism. Underpinned by contended notions of liberty and religiosity, this potent mix ensured that the newly minted English constitution enjoyed a quasi-religious status, embracing divinely ordained values and institutional arrangements that at once defined what it was to be both English and Protestant, and therefore was worthy of veneration. The decline of this constitutional model in the 19th and 20th century is then considered against the backdrop of empiricism, utilitarianism, nationalism and the victory of a political understanding of the constitutional model. The purported disappearance of the ‘legal’ constitution in this period, however, was never to be consolidated, nor were the contradictions inherent in the new ‘sovereignist’ model reconcilable with the explosion of rights jurisprudence in the latter part of the twentieth century. The article therefore concludes with a brief overview of the re-emergence of the language of constitutional faith in the late twentieth and early twenty-first century, and the renewed reliance on this rhetoric of constitutional veneration by the judicial branch of government in an attempt to influence the development of a normative English constitutional and national identity.

Read on SSRN

Centre: CIPL, CLAH, LRSJ

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

Chapter 3: Citizenship Law

Author(s): Kim Rubenstein

This chapter analyses Justice Kirby’s constitutional judgments, drawing out various themes in his approach to Australian citizenship law, and considers whether his approach to citizenship has been influenced by underlying ideas that are supranational (acknowledging nationality as a status beyond one nation-state) and universal, as applying to all citizens in all states, or indeed colonial (that is, influenced primarily by Australia’s British subject origins).

The chapter explores the distinction, drawn in several of Justice Kirby's citizenship judgments, between constitutional and statutory forms of nationality. Kirby J has rejected the idea that statutory forms of citizenship adopted by the Federal Parlaiment can define exclusively those who are Australian nationals, and thus 'non-aliens' - that interpretation, he argues, 'deprives the separate constitutional idea of Australian nationality of any content'.

However, while Justice Kirby has been keen to develop a contemporary understanding of the meaning and signifi cance of constitutional nationality, applied in a social and political context far removed from the understanding of the framers of the Constitution, his broadest view of membership beyond statutory citizenship status includes only those non-citizens who hold British subject status and who enjoy most of the rights normally attributed to democratic citizenship (such as voting). This “broad” view does not necessarily include those non-British-subject permanent residents who have spent almost their entire life in Australia and have been absorbed in most other social and political ways. To this extent, his view of citizenship is not supranational or universal, but linked directly to Australia’s historical colonial origins.

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

The Law School, the Market, and the New Knowledge Economy

Author(s): Margaret Thornton

This paper considers how recent changes in higher education are impacting on the discipline of law, causing the critical scholarly space to contract in favour of that which is market-based and applied. The charging of high fees has transformed the delicate relationship between student and teacher into one of ‘customer’ and ‘service provider’. Changes in pedagogy, modes of delivery and assessment have all contributed to the narrowing of the curriculum in a way that supports the market. The paper will briefly illustrate the way the transformation has occurred and consider its effect on legal education and the legal academy.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

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