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.

Another Modest Proposal: In Defence of the Prohibition Against Torture

Author(s): Desmond Manderson

In response to political and legal events that took place in the years following 9/11, and to contemporary legal scholarship defending the use of torture or other methods of interrogation in situations of emergency and crisis, this essay defends the legal prohibition of torture by both empirical and philosophical means, moving back to Voltaire and Swift and forward to Iraq and Palestine in order to maintain the necessity and efficacy of the prohibition.

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Centre: CLAH

Research theme: Legal Theory

Possessed: Drug Policy, Witchcraft and Belief

Author(s): Desmond Manderson

When our friends and family behave irrationally, indulging in fears and behaviours that even they agree are dysfunctional, eventually we stop reasoning with them and send them to an analyst instead. It is their irrational impulses that need to be understood if they are to change. After 50 years of prohibition, we know that banning heroin has not worked. Yet, still we persist. The question is why. It is time to psychoanalyse our drug policies, searching for the irrational fears and anxieties that lie at its heart. We find a surprisingly helpful parallel in another series of laws from long ago: the Witchcraft Laws of the sixteenth century. Entwining the two stories together, this essay argues that our drug laws are not intended to get rid of drugs, any more than the Inquisition wanted to ban the devil. The crime of possession is the sin of being possessed.

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Centre: CLAH

Research theme: Legal Theory

Proximity – The Law of Ethics and the Ethics of Law

Author(s): Desmond Manderson

Emmanuel Levinas is one of the great writers on ethics of the 20th Century, but he is little known in law. His two main works, Totality and Infinity and Otherwise Than Being, or Beyond Essence, offer a reconstruction of human selfhood away from questions of identity and ego and towards an ‘ethics of the other’. His writing is passionate, mystical, and rational, at times erudite and elsewhere downright obtuse. But as reward for this struggle, Levinas offers a sustained meditation on the relationship of ethics, responsibility and law, and - remarkably - he does so using the language of the duty of care. Here then is a philosopher, largely unknown to legal theory, who at last speaks the language of torts. Central to Levinas’ meditations is an idea of ethics to which I will have recourse. For Levinas, and those who have been influenced by him, the word ethics implies a personal responsibility to another that is both involuntary and singular. The demand of ethics comes from the intimacy of an experienced encounter, and its contours cannot therefore be codified or predicted in advance. At least as opposed to the Kantian paradigm of morality as ‘a system of rules,’ ethics therefore speaks about inter-personal relationships and not about abstract principles. At least as opposed to most understandings of law, ethics insists on the necessity of our response to others, and the unique predicament of each such response, rather than attempting to reduce such responses to standard instances and norms of general application applicable to whole communities and capable of being settled in advance. Indeed, ethics constantly destabilizes and ruptures those rules and that settlement. Furthermore, ethics implies an unavoidable responsibility to another which Levinas exhorts as ‘first philosophy’: by this he means to indicate that without some such initial hospitality or openness to the vulnerability of another human being, neither language nor society nor law could ever have got going. At least as opposed to many understandings of justice, there is nothing logical or a priori inevitable about such an openness; except that without it, we would not be here to talk to one another. We cannot derive this ethics from rational first principles. Ethics is that first principle.

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Centre: CLAH

Research theme: Legal Theory

'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.

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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

Unequal Membership: The Constitution's Score on Citizenship

Author(s): Kim Rubenstein

Vikram Seth's book, "An Equal Music," inspired the title of this chapter, "An Unequal Membership: the Constitution's score on citizenship." Seth's book invites the reader into the life of a string quartet - the dynamics, inspirations and musical highs and lows of life as a musician. But how does this relate to this chapter and this book? Perhaps the extract from the John Donne sermon that Seth includes at the beginning of the book sheds more light on the themes relevant to my argument:

"And into that gate they shall enter, and in that house they shall dwell, where there shall be no cloud, nor sun, no darkness nor dazzling, but one equal light, no noise nor silence, but one equal music, no fears nor hopes, but one equal possession, no foes nor friends, but one equal communion and identity, no ends nor beginnings, but one equal eternity."

While I think these words refer to the "pearly gates" of heaven, they are relevant to any gates that seek to exclude. In entering Australia's gates, non-citizens have not been welcomed to "one equal communion and identity" at any time throughout Australia's history. As a constitutional lawyer interested in citizenship, my inclination is to think about our constitutional document and its role in this unequal membership in Australian society. It is my thesis that the absence of citizenship in the Australian Constitution has fundamentally affected the development of legal and normative notions of membership of the Australian community. This chapter will examine why citizenship was omitted, the legal consequences of that omission, and the associated judicial constraint upon using normative notions of citizenship. Moreover, I argue that the recent MV Tampa crisis reflects further on our unequal membership, with notions of exclusion being more important than inclusion in determining membership of the Australian community. The chapter concludes by arguing for a stronger constitutional statement about citizenship for utilisation by courts, policy makers and the public, to more readily and easily enable a broader sense of membership in Australia.

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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

Globalisation and Citizenship and Nationality

Author(s): Kim Rubenstein

How well are the legal concepts of citizenship and nationality travelling in a globalised world? This chapter addresses the effects of globalization on people's status and membership within their own territory, and beyond it. Citizenship is a legal, political, and social construct that has domestic and international consequences. I argue that citizenship, in its traditional meaning of participation in and membership of the nation-state, will be fundamentally altered by globalisation and will not continue to travel in the same manner that it has been. The familiar domestic and international consequences of citizenship, such as political voting rights, legal rights, including the right to leave and enter a country, and social welfare rights, will be fundamentally affected by the changes in people's connection to the nation-state. This means that it can't be recognised as a generalisable legal notion, to the extent that it may have been in the past. Moreover, as people identify and become members of more than one community, we will witness an acceptance of multi-citizenship/membership within the nation-state and within the international order. The rise of the world citizen and the changes that have occurred in the nation-state mean that citizenship and nationality will be revised concepts in the 21st century. If they are able to adapt to these changed frameworks, then citizenship and nationally may continue to travel well. This chapter is a combination of two earlier works of the author reproduced in this important book edited by Catherine Dauvergne.

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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

In the Tout Court of Shakespeare: Interdisciplinary Pedagogy in Law

Author(s): Desmond Manderson

A great civilization, said Robert Cover, is to be judged by the quality of its law no less than its literature or engineering or science. In particular he meant by law a nomos, which is to say a way of being in the law experienced by members of that community, a way in which their law is seen to be related to their literature, and their engineering, and their science, as part of a continually relevant cultural interaction. I have for a long time been looking for ways to properly integrate methods of interdisciplinary thinking into my writing and teaching. Typically one does this by using literary or other texts to shed light on the law. But this is a form of parallel play and not a real integration. My commitment to an interdisciplinary approach is far stronger than any mere comparativism. Law is a literature and, which is more, literature is law, in its form, its power, its interpretative strategies, its discursive effects. Now one might respond by insisting that law cannot be conjured out of nothingness: it requires a specific institutional form that authorizes and enforces it. But that is entirely to confuse cause and effect. The question of form is undoubtedly relevant to legal – as to any – meaning and rhetoric, but institutionalization within specific State-driven structures is not. The treatment of law as if its meaning and its legitimacy were somehow separate from the cultural forces that give birth to it and in relation to which it is understood, has led scholars to make of law a mere technic for dispute resolution, and a purely hermetic practice beholden to nothing but its own logic. The failure to appreciate that law’s value stems from its cultural integration has amounted to a systematic impoverishment of its capacities and of its relevance to the community as a whole. I have often wondered how best to dramatize some of these issues: to ask students to imagine what it might be like to experience the birth of law, and to invite them to be responsible for the emergence of interpretative and normative principles; to encourage them to explore the interpretative connections and differences between literature and law in a real setting; to provide a forum in which students and teachers can think carefully about how our normative beliefs find their way into and through objective legal texts, forming and yet being constrained by its meaning.

In particular, I have always thought that any sufficiently rich body of textual material could serve as the basis of a legal system, and would pose very similar questions as to how those texts become binding and meaningful under the day to day pressures of judicial reasoning. Moreover, I think there is a real advantage in approaching these complex questions indirectly, offering therefore to teach students about law (or droit or Recht) – its genesis and evolution, its structures of reasoning and rhetoric, and the relationship of facts to texts to norms – without ever making the mistake of reducing it to the content of any particular ‘law’ (or loi or Gesetz ) whatsoever. The current essay explores a pedagogical experiment in which English and Law students worked together to found a ‘court of Shakespeare’ as an ongoing practice of legal genesis, constitution, and interpretation.

Read on SSRN

Centre: CLAH

Research theme: Legal Theory

From Hunger to Love: Myths of the Source, Interpretation, and Constitution of Law in Children's Literature

Author(s): Desmond Manderson

Children's literature is an important and wildly unappreciated source of law: a repository of myth that develops, in children, life-long understandings of law and our relationship to laws. It is not a question of "law and literature" but of literature as law, and law as literature. The article takes the celebrated book by Maurice Sendak, "Where the Wild Things Are", as a case study through which to develop an argument as to the origin and nature of legal consciousness in children. The book demonstrates Norbert Elias' proposition that children's process of up-bringing is precisely a miniature re-enactment of the development of modern civilization in the West. However, the article goes much further than this in arguing that Sendak's story explores precisely what it means to begin to learn how to "interpret" a legal text. One orthodox position would have it that a civilized child simply "obeys" their parents. But Sendak's text dramatizes the inherent difficulties that children face in understanding what it means to be obedient. These difficulties are insoluble, endemic, and intensely felt. To understand a civilized relationship to law as children begin to perceive it requires us to develop a more complicated jurisprudential position. The child Max resolves his proto-legal dilemma, at the end of the dream sequence that forms the centerpiece of the book, through an idea of legal responsibility that is quite distinct from that of legal obedience. The essay argues that "Where the Wild Things Are" asks us to understand love and law as institutions that require us to think about what they are for, in order to interpret what they mean. Drawing on the ethical philosophy of Emmanuel Levinas, the article concludes that to love the law, or to promise to honor the law of the family one loves, demands an on-going commitment to think about its purposes and its justice. Such a commitment is incommensurable with literalism, legalism, or positivism.

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Centre: CLAH

Research theme: Legal Theory

Can the Right to Vote Be Taken Away? The Constitution, Citizenship and Voting Rights in 1902 and 2002

Author(s): Kim Rubenstein

This chapter deals with three related issues. Linked directly to the commemoration of the centenary of white women's vote is the story of the fight for women's voting rights and how that is directly reflected in Australia's constitutional document. This leads to a discussion of the significant lack of protection of voting rights in the Australian constitution. Finally, the chapter addresses the disjuncture between citizenship and substantive rights in the Australian legal and political environment. This is relevant, not just to women, but to all Australians.

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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

Affirmative Action, Merit and Police Recruitment

Author(s): Margaret Thornton

Affirmative action measures, particularly the use of quotas, are contentious because they are assumed to contravene the merit principle. This piece challenges the assumption with reference to a proposal by Victoria Police that 50% of all new recruits should be women. It argues that the normativity of the white male police officer has shaped the construction of the ‘best person’. The paper includes an overview of affirmative action law in Australia.

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Centre: CIPL, CLAH, PEARL

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

Love on Trial: Nature, Law and Same-Sex Marriage in the Court of Shakespeare

Author(s): Desmond Manderson

This paper provides the text of a judgment on the legality of same sex marriage in the court of Shakespeare, a radically interdisciplinary pedagogical experiment undertaken by ENglish and Law students at McGill University. The court considered oral arguments and briefs from counsel on the meaning of marriage in the Shakespearean corpus, particular the marriage comedies, and further examined the jurisprudential practices of the Court, and the question of interpretation over time. The question is, is marriage immutable or cultural dynamic and what does a careful reading of Shakesepare tell us about these legal and social questions?

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Centre: CLAH

Research theme: Legal Theory

Australian Citizenship Law in Context

Author(s): Kim Rubenstein

Australian Citizenship Law in Context by Kim Rubenstein is a new book published in May 2002 by Lawbook Company. Citizenship is the pivotal legal status in any nation-state. For Australia, the democratic, social and political framework, and its identity as a nation, is shaped by the notion of citizenship. Australian Citizenship Law in Context sheds light on citizenship law and practice in the broader context. It also provides the most up-to-date analysis available of the Australian Citizenship Act 1948 and its future direction, plus the first comprehensive listing and analysis of legislation that discriminates upon the basis of citizenship and residence.

The book covers issues of citizenship law, migration law and constitutional and administrative law, and is also a valuable resource for any discipline interested in citizenship. Contents. Preface. Table of Contents. Table of Cases. Table of Statutes. Chapter 1: Citizenship in Australia: An overview. Chapter 2: Australian Citizenship in the 1890s and the Australasian Federal Convention Debates. Chapter 3: Australian "Subjecthood" before Australian Citizenship 1901-1949. Chapter 4: The Australian Citizenship Act 1948. Chapter 5: The Legislative Consequences of Citizenship. Chapter 6: The High Court and Citizenship and Membership. Chapter 7: The Future of Australian Citizenship Law. Index

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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

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.

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Centre: CIPL, CLAH, PEARL

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

Citizenship and the Centenary: Inclusion and Exclusion in 20th Century Australia

Author(s): Kim Rubenstein

This article looks at citizenship as both a legal formal notion, and as a normative notion. While the legal citizen is primarily concerned with the formal status of individuals in the community (compared to permanent and temporary residents), the normative citizen looks to broader concepts, speaking of membership regardless of a person's formal status. The consequence of these different meanings is that citizenship has been expressed in both inclusive and exclusive ways throughout the 20th century. The article displays this by looking at the beginnings of citizenship in Australia before the legal status was formalised, then the first fifty years of the formal status, and finally at the legislative and common law expressions of citizenship. It argues that the confused and often contradictory messages of citizenship require us to be more mindful in the 21st century about the relationship between the formal and normative meanings of the term.

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 Care of Strangers

Author(s): Desmond Manderson

Using the story of Antigone as a foil, this essay attempts to reframe questions of legal responsibility in the case of asylum and refugee law through the lens of Emmanuel Levinas. Using this framework, the article argues that questions of sovereignty must be recast as questions of hospitality. The fundamental test of justice is one of hospitality to the stranger. Too bad for us, but we do not have a say in the matter. In this, we are already the chosen people.

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Centre: CLAH

Research theme: Legal Theory

Apocryphal Jurisprudence

Author(s): Desmond Manderson

The purpose of the present article is to present to readers a conspectus of post-structural perspectives on legal theory which, I will argue, have been gravely misunderstood precisely because they have so often been discussed within the inappropriate terms of the bounded disagreement between CLS and positivism. My argument is rather to clarify the ways in which these new approaches ask very different questions and derive from different and irreconcilable concerns. Recent scholarship has sometimes spoken about jurisprudence as a battle between two warring tribes: “the orthodoxy” and “the heresy”. A heresy is a disagreement within a tradition, and a tradition, far from being a static structure of rules or doctrines, is an argument through time. On one level, then, a heresy challenges the conventional answers within a tradition, but on another level, it confirms precisely the power and relevance of its questions. To wage war requires a disagreement as to denomination, but an agreement as to currency. The field of mars must be determined; cannons must meet cannons; victory must be recognizable.4 Ironically, hierarchs and heresiarchs, patron saints and sinners, desperately need each other, for they mutually constitute their own importance: what they reject on the level of content, they sustain on the level of discourse. The current essay suggests that poststructural and critical theories of law represent neither heresy nor orthodoxy, but an apocrypha – a range of rejected or disputed perspectives that cast a thwart light on standard questions and open up a very different mode of engagement and range of responses. Using the seminal Australian case of Kruger as its case study, this essay shows how apocryphal jurisprudence might destabilize orthodox and heretical approaches to law alike.

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Centre: CLAH

Research theme: Legal Theory

From Oxymoron to Intersection: An Epidemiology of Legal Research

Author(s): Desmond Manderson

This paper surveys legal research in Australia. Using both theoretical and empirical work, it argues for a significant shift towards humanistic, theoretical, and interdisciplinary scholarship in law and explores the implications for legal research and for postgraduate supervision of this shift.

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Centre: CLAH

Research theme: Legal Theory

EEO in a Neo-Liberal Climate

Author(s): Margaret Thornton

This paper interrogates the ways in which different meanings of equality and inequality are produced within political and legal discourses. With particular regard to the Australian experience, the paper considers the significance of the disappearance of affirmative action (AA) from the equality lexicon with the repeal of the federal AA legislation and its replacement with the equal opportunity (EO) for women in the workplace legislation. Even as this change was being implemented, EO was already being superseded in favor of ‘diversity’. It is argued that the linguistic changes signal a shift to the right of the political spectrum which emit deeply conservative and regressive messages regarding the gendered character of the workplace. Illustrations are drawn from the dissonant relationship between women and authority.

Read on SSRN

Centre: CIPL, CLAH, PEARL

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

International Citizenship: The Future of Nationality in a Globalised World

Author(s): Kim Rubenstein

This article attempts to identify the consequences for "nationality" in a world where "sovereignty" is challenged by the process of globalization. It builds upon Kim Rubenstein's chapter Citizenship in a Borderless World in A Anghie and G Sturgess (eds) LEGAL VISIONS OF THE 21ST CENTURY: ESSAYS IN HONOUR OF JUDGE CHRISTOPHER WEERAMANTRY (Kluwer Law, 1998) and responds to the feature article Citizenship Denationalized by Linda Bosniak in the same Spring 2000 edition of the Indiana Journal of Global Legal Studies.

The piece begins by defining "nationality" and "globalization". It distinguishes "citizenship" and "nationality" in a technical legal sense and considers citizenship and globalization as multifaceted concepts. It also highlights that there is an inherent tension in the development of citizenship for the citizenship project is about the expansion of equality among citizens, however, as equality is based upon membership, citizenship status forms the basis of an exclusive politics and identity. The article then concentrates on some tensions endemic to nationality, particularly in a globalized world. It does so by looking at nationality's functionality as a legal and social tool, concentrating upon various treaties and agreements and the international case law dealing with nationality. The case law analysis is divided into the "Standing Cases" and the "Human Rights Cases". Finally, the article concludes by arguing that the concept of effective nationality facilitates a theoretical (if not yet a practical) entry point for the acknowledgment of layered and/or fragmented nationality appropriate to the circumstances of our participation in a given national, supranational, regional or even non-territorial community.This puts nationality more in line with a "rights" -based individualized focus for international law rather than a sovereignty-based one. It is where the progressive project of citizenship meets nationality, melding, strengthening and integrating them as one and the same tool for building justice in a new era.

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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

Mandatory Sentences and The Constitution: Discretion, Responsibility, and Judicial Process

Author(s): Desmond Manderson

This article argues that mandatory sentences are unconstitutional under Australian law. The constitutional challenge most likely to succeed is not based on the practical severity or otherwise of the law, but instead based on an argument of incompatibility with the judicial process. This is an argument which has only been clarified since the High Court’s decision in Kable v Director of Public Prosecutions (NSW), itself decided long after Palling. The real issue is not the existence of prosecutorial discretion but the striking absence of any countervailing judicial discretion. This balancing discretion is central to the idea of judicial process as we understand it. In the normal course of events, if a prosecutor decides to use his or her discretion to pursue an essentially trivial matter, the Court may refuse to impose a fine, or suspend the sentence, or discharge the matter. Undoubtedly there are limits to these powers in some legislation, but these limits do not completely eliminate judicial discretion although they may constrain it. More specifically, we argue that mandatory sentencing provisions require courts to act in a way which is incompatible with the obligation to act judicially. We examine the evolution of what we call the ‘doctrine of incompatibility’ in an effort to give more concrete meaning to the idea of acting in accordance with the judicial process. Our purpose in this article is not to comprehensively define what constitutes the judicial process. Rather, we argue that the judicial process at least requires that those who preside over the process act judicially, and we seek to explore what it means to act judicially. We contend that the act of judgment must have integrity and independence, secured at the very least by procedural fairness, and arguably, by equal justice. Moreover, the act of judgment must involve some degree of independent judicial discretion in determining sentence. Some element of genuine judicial discretion is necessary in legitimating the judicial role, and thus in maintaining public confidence in the courts. The history of the English, and later the Australian common law cannot be read as suggesting that the legislature enjoys unlimited power to completely eliminate judicial discretion in imposition of punishment.

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Centre: CLAH

Research theme: Legal Theory

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